Military benefits in Wisconsin divorce

Military benefits in Wisconsin divorce

The Wisconsin Court of Appeals today decided Peterson v. Bauer, http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=104582, a Wisconsin divorce case addressing a husband’s request to terminate military disability payments to his ex-spouse.   Although the case will not be published, the ruling touches on several interesting issues that I will discuss in this and other posts.

First, this case shows the pitfalls of going through Wisconsin divorce without a lawyer.   Spouses in a Wisconsin divorce often try to save money by foregoing lawyers and using free legal forms from the court.  Although these forms may work in some simple matters, they provide NO  legal advice, nor do they assist the couple in actually resolving any problems.  They act only as a simple guide.  In this case, one half of the husband’s military disability benefit, because of poorly drafted wording in the divorce agreement, was awarded to the ex-wife.  The Court specifically found that, because the husband agreed to divide the benefits, they were considered property, not support, and did not terminate upon the ex-wife’s remarriage. As property, the husband very well could be required to pay those benefits for the rest of his life.

For members with long-term service, military retired  pay is often the most valuable asset the couple possesses.  Military disability payments can sometimes be considered a subset of military retired pay.  The award of disability payments can, unless protected, defeat an award of benefits to the ex-spouse of the military member.  Also, until fairly recently, a military spouse could be prohibited by federal law from receiving any of the member’s retired pay.   Following a controversial US Supreme Court decision, Congress passed a law to modify that prohibition.

However, the rules regarding division of retired pay are still rather strict, and apply somewhat differently in a Wisconsin divorce than in other states.  An experienced Wisconsin divorce lawyer, particularly one with a good understanding of military benefits, would have almost certainly protected this asset for the husband.   By not retaining a divorce lawyer, the husband likely cost himself in the end.

Published by David Kowalski

Attorney David Kowalski is the founding owner of Kowalski, Wilson & Vang, LLC, handling all family law cases from divorce, paternity, child custody, termination of parental rights, restraining orders, and guardianships.

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