Divorce proceedings involving parties that are members of the United States Armed Forces pose specific and often convoluted issues that must be handled by someone well-versed in the legalities of military divorce. For example, there are numerous requirements to complete when handling the division of a military retirement or pension, or preparations to consider when a parent is required to appear for military duty. A recent 2016 case in Vermont illustrates an example of how beneficial and necessary a skilled military divorce attorney can be when handling military matters within a divorce.

In 2016, a trial court judge in Vermont refused to divide the then-husband’s military retirement, stating that since the retirement was
not yet vested, that he “would not and could not distribute” the military retirement since the husband had, at the time of the final hearing, no entitlement to his retirement. The judge, in his reluctance to divide the retirement between the parties, pulled both attorneys aside to speak with them and, as a result, the then-wife entered into a stipulation to accept $15,000.00 in exchange for her waiver of any claims to the husband’s future military retirement.

It was later discovered that, in fact, the judge was wrong. Not only was the judge able to distribute the husband’s military retirement, as the law in most states (including Florida) does not require the actual vesting of marital assets as a precondition to those assets being divided upon divorce, but the wife’s portion of the retirement over her lifetime could have been worth nearly $500,000.00, which was lost as a result of the judge’s error and the attorney’s failure to recognize the error.

When the wife’s attorney later realized the judge’s misguidance and that the stipulation was inequitable for the wife considering the law on the matter, she sought to set aside the stipulation “on the ground that she entered into the agreement in reliance on an in-chambers ‘weather report’ in which the trial judge misstated the applicable law.” See Coons v. Coons, 2016 WL 1706665, a Supreme Court of Vermont case on appeal from the Vermont Superior Court – Family Division Docket No. 137-5-14. The Supreme Court of Vermont affirmed the lower court’s decision and did not overturn the stipulation, stating that a mistake of law does not establish a reason for setting aside a binding final stipulation.

Due to the judge’s assumption, and the wife’s attorney’s unawareness of the applicable law regarding military retirement benefits, the wife was unable to receive the benefit of her marital portion of the husband’s military pension. When any member or prior member of the military needs assistance in divorce proceedings, engaging the services of an experienced military divorce attorney is in their best interests. An attorney who consistently practices in the field of military divorce and is knowledgeable regarding the current laws, options, and information that encompass a military divorce proceeding can achieve an equitable settlement or be in the best position to advocate on these issues at trial.

Kristin Kirkner is board certified in marital family law in the State of Florida and has focused her practice solely on family law and military family law since 2004. Kristin has been accepted in the Thirteenth Judicial Circuit for the State of Florida as an expert in military divorces and division of military pensions. Contact us today or call (813) 254-0156 to discuss your military divorce needs.

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