Why Obtaining a Lawyer is Important for your Military Divorce (Part 1)

You are a reasonably intelligent person. You’ve been through school (perhaps college and graduate school as well), you have a job that requires a significant level of expertise and you understand the issues involved in your separation or divorce better than any lawyer ever could. The question is not whether you need a lawyer to separate from or divorce your spouse. That answer is obvious – no. Many people get a divorce or negotiate a marital separation without spending money on a lawyer. The real question is whether you should hire a lawyer?

Is it worth it to hire an attorney?

The answer depends largely on your situation, but in most cases hiring a lawyer is probably well worth the money. No one can guarantee you that hiring a lawyer will be worth the money, but you are taking a blind risk if you choose to go it alone. If you’re not an electrician, would you do your own wiring? If you don’t know what you are doing, you are taking a significant risk of getting burned.

Clients will often say something like: “we’ve worked out everything, we just need to sign the papers and get a divorce.” But what are you signing?  The unknown costs of not getting a lawyer often far exceed the costs of hiring one. Moreover, it is usually too late (or too expensive) to fix an error after you have made a legal mistake.

Recently, a woman came to my office and told me that she and her husband (a Navy E-6) had divided all their assets and debts, agreed on child custody and visitation arrangements as well as child support. Her husband was eager to get a divorce and would file the papers as soon as she signed the Marital Separation Agreement. The client had read the Agreement and it seemed fair to her. (Besides, he said he would take care of her.) She just wanted a lawyer to take a look at it before she signed it.

The Separation Agreement her husband gave her to sign read like it was fair.  For example, it stated that each party would keep all the assets and debts in his or her possession, but it was what the Agreement left out that was unfair.  Because she had no experience with what a Marital Separation Agreement should include, she had no clue that she was getting ripped off.

When the parties agreed to divide their marital assets so that she keeps what she has and he keeps what is in his possession, my client (the wife) would have waived her interest in his military pension as well as his Thrift Savings Plan (“TSP”) his bank accounts (which she had no idea about) and survivor benefit protection. They had been married about nine years and he had been in the Navy earning a pension that entire time. The portion of his military pension earned during the marriage is usually considered marital property (even if the parties are married for less than ten years).  The same rule applies to the husband’s TSP, bank accounts and any other asset regardless of whose name is on the title.

Because her Separation Agreement did not state explicitly that she had an interest in his military pension (“if, as and when he begins receiving his Navy pension”), she would have forever waived her interest in her husband’s Navy pension,[1] TSP and all his other accounts. Also, the investment property (titled in the husband’s name) is in his possession but is marital property.  The equity in the investment house earned during the marriage is marital property and she would presumably be entitled to half of the marital property. This client almost gave up over $100,000 in present and future assets by signing a Marital Separation Agreement before reviewing it with an attorney.

[1] Like many, this client thought that she was not entitled to any share of her husband’s military pension because she had not been married to him through ten years of military service (the “10-year-rule”). Like many, she was wrong. See our discussion of the law regarding military pension division in Chapter 3.