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Years of Military Service During the Marriage
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Attention: the information on this page pertains to the following case analysis: Kelly Vs Kelly. It is recommended to read this case analysis for a full understanding.

The facts of Kelly also demonstrate another type of reason why changes in a qualified order may be required. The original order stated that the husband had nine years of service during the marriage. At the time of retirement, both parties agreed that the husband had 10 years of service during the marriage. The basis for the agreement was not stated, but the actual time between entry into the army and divorce was from February 15, 1983 to November 18, 1992. If one looked only at years, the period from 1983 to 1992 would be nine years. A more precise measurement would be 9 years, 9 months and 3 days, a period of time which is much closer to 10 years than 9. If this was the basis of the error, Kelly demonstrates the importance of considering months and days, and not merely years.

In any event, regardless of the nature of the error, the original divorce decree in Kelly clearly contained a mutual mistake. Judges and litigants are no less prone to errors than other persons, and a mutual mistake is a well-recognized reason for reforming any written instrument, including a judgment. Divorce judgments are certainly no more final than judgments in other areas of law. Thus, there is a growing body of law holding that the court correct a mutual mistake in a qualified order. E.g., In re Marriage of Petraitis, 263 Ill. App. 3d 1022, 636 N.E.2d 691 (1993); Eckhoff v. Eckhoff, 71 S.W.3d 619 (Mo. Ct. App. 2002); Elsasser v. Elsasser, 989 P.2d 106 (Wyo. 1999); Turner, supra, 6.07 n.173. Since reformation for mutual mistake is clearly nonsubstantive, the potential for such reformation should not trigger any federal law problems with the finality of the order.

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