St. Denis & Davey, P.A.

Legal Malpractice Issues

Military divorce and pension division can result in malpractice

| Jun 4, 2020 | Uncategorized |

Sometimes, lawyers handle so many divorce proceedings that they almost become routine. As such, some attorneys may make the mistake of applying standard divorce law practices to military divorce cases. However, military divorce proceedings involve numerous complex and unique issues, including the division of military pensions.

Incorrect or improper dividing of military pension plans are fertile ground for legal malpractice claims. You should be careful to avoid these mistakes when dividing military pensions.

Failing to include pensions in marital property equations

It happens more often than you may think. However, Florida law treats all vested and non-vested pensions as marital property. It’s essential to include military pensions when devising a plan for equitable distribution of property.

Using an unqualified order to distribute the pension

Whenever possible, distribute pensions according to a percentage or a fixed dollar amount. It’s important to draft qualified military orders early on in the divorce process. Language should be clear and unambiguous. If there is any room for interpretation, litigation is almost an inevitability.

Forgetting about survivor benefits

Upon retirement, federal law requires military members to name their spouse as beneficiary of survivor benefits at the maximum rate. If the divorce occurs after retirement, the ex-spouse will no longer receive survivor benefits unless named as part of a court order. The ex-spouse must secure the court order within one year of the divorce. If the the retired military member remarries, the new spouse will be named the beneficiary if a court order is not secured.

Is it malpractice?

Whether a case rises to the level of legal malpractice is a complicated question. You should seek advice from a professional with experience in this area of the law to learn more about your available options.