Wednesday, May 5, 2010

THE MARRIAGE ZONE: REVIEWING YOUR WILL

THE MARRRIAGE ZONE: REVIEWING YOUR WILL
By Christopher C. Meyer  2010


This article is not about your personal determination. It is about your last will and testament. When should you review your will?

Generally speaking, you should review your will: whenever you have a major change in your personal situation; whenever you have a major change in your financial situation; or, annually, to determine if there are any changes in the law that should be reflected in your will. A divorce usually generates reasons to review your will because big personal and financial changes result.

If you already have a will, what happens to it if you get divorced? Married folks typically list their spouse as a beneficiary. Divorced folks rarely do this. After you are divorced, you usually don’t want much to do with a former spouse, much less gift them the property you have left after the divorce. Talk about adding insult to injury!

Fortunately for a lot of folks, the law assumes that you will forget to change your will after you are divorced and remove your now former spouse as a beneficiary. Absent an agreement between the parties or a Court order, a divorce invalidates testamentary (will) gifts to former spouses. The same is true for powers of attorney, insurance beneficiary designations, and pay on death designations for various accounts. The same is also true for folks who never had a will. If your estate passes via intestate succession, it is not going to a former spouse.

Situations may arise where there are good reasons to maintain a former spouse as a beneficiary in a will. An example might be to insure continued maintenance payments after a long-term marriage. The best practice in such instances is to make a new will after the divorce.

After you have exited from the marriage zone, you should make a new will. If you don’t, and your former spouse is your only beneficiary, when you pass away your property will be distributed according to the plan the legislature has determined for such situations (intestate succession) and involves your property being distributed to your closest blood relations.

This article is for informational purposes only and does not constitute legal advice about your case.

Chris Meyer is an attorney practicing family law in Northern El Paso County. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information and many other articles.

Tuesday, May 4, 2010

Military Retirement

THE MARRRIAGE ZONE: MILITARY RETIREMENT
By Christopher C. Meyer copyright 2010


A lot of military and former military folks live in our area. It is not surprising that I am often asked “If I get divorced, will I get part of my spouse’s military retirement?” Fortunately for the person posing the question, the answer is yes, you will receive part of your spouse’s military retirement if you were married to your spouse during at least part of the time your spouse was serving in the military.

Military retirement benefits, like civilian retirement benefits, are marital property to the extent they are earned during the marriage. Marital property will be divided between the parties by the Court in a divorce.

Military retirement, or “disposable retired pay”, is divided using a formula: months of marriage during military service are divided by the total months of military service; disposable retired pay is then multiplied by this fraction to arrive at the total marital portion of the disposable retired pay. Fifty percent of the total marital portion is then typically allocated to the non-military spouse.

For example: military spouse has 252 months (21 years) of military service; the parties were married for 216 months (18 years) during that military service. In this example the disposable retired pay is $2000 per month. Therefore, the marital portion of the retirement is $1714.28 per month (216 ÷ 252 × $2000). The non-military spouse’s share will be $857.14 per month ($1714.28 ÷ 2), and the military spouse’s share will be $1142.86 ($2000 – $857.14). Sorry about all the math, but it may be useful to you if you need to crunch some numbers.

If a divorce happens prior to retirement, some provision should be made to protect the non-military spouse in the event the military spouse should die. Payment of military retirement ceases upon the death of the retiree. A survivor benefit plan (SBP) is available through the military, or life insurance can be purchased to cover the amount of the anticipated retirement funds. Either method will insure that the non-military spouse continues to receive their share of the retirement after the retiree dies.

Keep in mind that flexible and creative solutions can be substituted for the actual division of the military retirement in certain instances when the parties agree. For example, a lump sum payment calculated on the present value of the military retirement can be substituted for an actual division of the retirement.

You may have heard of the “ten year rule”. Many mistake this rule to mean that the parties have to have been married for ten years during the military service to be eligible to receive a portion of the retirement in a divorce. This rule only means that the parties must have been married for ten years during the military service in order for the non-military spouse to paid their portion of the retirement directly from the military (DFAS). If the parties are married for less than ten years during the military service, the military spouse pays the non-military spouse directly, rather than the payment coming from DFAS.

Make sure you cover all your bases when you exit from the marriage zone, and don’t forget to arrange to receive your fair share of your spouse’s military retirement.

This article is for informational purposes only and does not constitute legal advice about your case.

Chris Meyer is an attorney practicing family law in Northern El Paso County. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information and many other articles.