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divorce question
Old 12-23-2014, 01:02 AM   #1
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divorce question

someone very dear to me is about to get a divorce. She's been married to a do-nothing lazy bum for about 3 1/2 years now. She was married in CA and they're living in CA.

He hasn't worked much since getting married, so she's been the only one bringing the income. She has a couple of ROTH IRA's and a military retirement acct (TSP) that she started before the marriage (total value = around $40k). She's in the Army reserve but is on active duty currently.

some questions, hopefully someone could answer.

1. does she have to split the IRA and TSP with her husband even though they were started before the marriage.

2. she also has a military pension, does she have to split that too?

3. any free or low cost legal web site or resources she can use?

4. I think a paralegal is much cheaper, in what cases she must use a lawyer instead of a paralegal.

5. what if he refuses to sign the paper, what are her remedies.

6. is it true that after being legally separated for period of time, she'd be considered divorced? At the moment, they're renting her mom's house.

7. what other questions or things she should be asking in a divorce, what are some of the watch-outs or pitfalls?

thanks.
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Old 12-23-2014, 03:04 AM   #2
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As far as legal advice, your friend may get what they pay for if they use a free or low,cost service. I hate lawyers, but they do come n handy.
Military pensions are safe unless married for,ten years or more.
In a community property state like California, they typically use the gain in a retirement account when determining how to split assets, but that's a question for a lawyer in the state.
I don't believe there is an automatic divorce after a period of legal separation and that could be an expensive assumption.
In my experience the divorce was done by court order and did not require a final signature be either of us. However, if it is an agreement settled out of court there are likely documents to be signed. An agreement would be much less expensive in legal fees overall.
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Old 12-23-2014, 04:08 AM   #3
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Since she is active duty, she could start by talking to the JAG office on base. They can get her started at least.

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Old 12-23-2014, 09:35 AM   #4
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Concur that she needs legal advice from a lawyer in CA. I believe generally that any assets prior tot he marriage can be taken out of any claim by the spouse. However any contributions during the time may be subject to split. Again, need to get CA state specific law rules. I think CA is no-contest state, so if he won't sign the judge can make it official and force him to accept the divorce.
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Old 12-23-2014, 09:46 AM   #5
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Having unfortunately been down this route, let me echo that a lawyer is really needed unless the bum is willing to sign a reasonable division of assets. Even then a lawyer is probably worth it.

Assets from before marriage are separate; but if you have co-mingled separate property with community property, you may have turned it all into community property. There is no automatic divorce; you need to have a court order terminating the marriage and separating the assets. There is not a requirement for the spouse to sign anything or for him to agree to a divorce. One party can force the divorce to occur.
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Old 12-23-2014, 10:50 AM   #6
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Originally Posted by robertf57 View Post
Having unfortunately been down this route, let me echo that a lawyer is really needed unless the bum is willing to sign a reasonable division of assets. Even then a lawyer is probably worth it.

Assets from before marriage are separate; but if you have co-mingled separate property with community property, you may have turned it all into community property. There is no automatic divorce; you need to have a court order terminating the marriage and separating the assets. There is not a requirement for the spouse to sign anything or for him to agree to a divorce. One party can force the divorce to occur.

That "co-mingling" of funds really saved me. We both were young and really had no assets, but I did have $20k in a savings account in a town I previously lived in and was too lazy to ever get it (pre internet days). That saved my bacon as if I had retrieved the money and put it in our joint account I would have lost half of it.


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Old 12-23-2014, 10:57 AM   #7
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That "co-mingling" of funds really saved me. We both were young and really had no assets, but I did have $20k in a savings account in a town I previously lived in and was too lazy to ever get it (pre internet days). That saved my bacon as if I had retrieved the money and put it in our joint account I would have lost half of it.
A next door neighbor said the same thing, except it was about a multi-million dollar inheritance (and this was back in the 70s.)
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Old 12-23-2014, 03:37 PM   #8
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She really needs to talk to a lawyer familiar with the applicable law. This is one of those times when having a lawyer from the outset can, and probably will be, cheaper than not having one.

Generally assets that she had prior to the marriage remain hers but this is why she needs the lawyer. If not handled right she could lose her savings. I'd wager the lawyer's fee will be less than the value of her $40k or even half of it.
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Old 12-27-2014, 10:49 AM   #9
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Originally Posted by ER_Hopeful View Post
someone very dear to me is about to get a divorce. She's been married to a do-nothing lazy bum for about 3 1/2 years now. She was married in CA and they're living in CA.

He hasn't worked much since getting married, so she's been the only one bringing the income. She has a couple of ROTH IRA's and a military retirement acct (TSP) that she started before the marriage (total value = around $40k). She's in the Army reserve but is on active duty currently.

some questions, hopefully someone could answer.

1. does she have to split the IRA and TSP with her husband even though they were started before the marriage.

2. she also has a military pension, does she have to split that too?

3. any free or low cost legal web site or resources she can use?

4. I think a paralegal is much cheaper, in what cases she must use a lawyer instead of a paralegal.

5. what if he refuses to sign the paper, what are her remedies.

6. is it true that after being legally separated for period of time, she'd be considered divorced? At the moment, they're renting her mom's house.

7. what other questions or things she should be asking in a divorce, what are some of the watch-outs or pitfalls?

thanks.
She needs to talk to a military lawyer ("the JAG") right away. The longer she dithers, the greater the likelihood that her spouse will talk to the JAG first. That will mean she'll have to find another JAG.

#1, #2: Not according to the federal law, the Uniformed Services Former Spouses Protection Act. However that law only says that military entitlements and benefits (pension, healthcare, base access) can be divided as property by a state's divorce agreement. The only document that really counts is the state divorce agreement.

For example, the state could decree that since the USFSPA allows division of a pension then she has to pay him x% of the projected amount of her pension for y% months. Or because he had a reasonable expectation of healthcare for the rest of her service obligation, she has to buy him a policy off the ACA exchange for z months. I've heard (but not confirmed) that CA is one of the nation's most notorious states for creative interpretations of the USFSPA.

#3. I'm sure there are lots of them, and they're worth exactly what she pays for their services. This is not a time to shop on price. The JAG is free.

#4. The JAG is free, and JAGs have their own paralegals (military enlisted assistants). She needs to go see a JAG now.

#5. That's up to the state. The usual solution is some form of negotiations, perhaps mediation or even arbitration. Eventually a court order can be issued with or without his agreement.

#6. Again, that would depend on state law.

#7. She should be asking the JAG what she's legally obligated to pay to her spouse now. For example, she might be required to give him a certain amount of her pay and allowances (as a deposit to his checking account) for his support until the divorce is final. If they're separated, then she should make sure that her chain of command is aware of that. She needs to ensure that nobody thinks she's fraudulently drawing a housing allowance.

If she has not already done so, she should separate their finances now-- separate checking accounts, separate credit cards, separate investment accounts. She's not obligated to divide any assets, but if his name is on an account (joint or survivor) then it's probably a bad idea to appropriate it. She should also check her credit reports and consider freezing them-- in case he's holding (or applying for) other credit cards or loans in her name.

A lawyer will guide her through all that in a checklist. Did I mention that she should talk to a JAG?

Here are links to military-specific posts for issues like her Survivor Benefits Plan and any potential disability rating:
Military retirement and divorce - Military Guide
Protecting Your Military Benefits In A Divorce - Military Guide

But before she reads those posts, she should go talk to... a JAG.


I know this snarky harping on seeing a JAG may seem inappropriate at such a stressful time, but I get this question a lot. In every instance of this situation, I suggest that the reader consult the JAG. In just about every damn instance that I make the suggestion, the reader delays and hesitates and otherwise finds excuses reasons to not see a JAG. It appears to be behavioral human nature.

She doesn't need to have all the answers, and she doesn't need to think through the details. She doesn't need to "talk it out" or "get her finances in order". She needs to grab hold of someone who can help her get started on the process, and that someone is the JAG.
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Old 12-27-2014, 05:05 PM   #10
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She doesn't need to have all the answers, and she doesn't need to think through the details. She doesn't need to "talk it out" or "get her finances in order". She needs to grab hold of someone who can help her get started on the process, and that someone is the JAG.
Thanks Nords.

Yes, she did mentioned she was going to see her JAG. I'm waiting to see what she's found out. She's been deployed overseas right now so communication with her is kind of sketchy.
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