Military Divorce Guide For The Experienced Practitioner

I. INITIAL CLIENT SCREENING

Every attorney has a different business approaches, I find it most efficient to talk to all potential clients on my cell phone to screen their case, and I do not charge a consult fee. 9 out of 10 cases are not a fit for my practice, should be referred or declined.

A. DECLINE AND/OR REFER CERTAIN CASES

1. THE SHORT TERM MARRIAGE, NO ASSETS/INCOME CASE

The experienced practitioner has learned, through bitter experience, to decline or refer certain cases. Generally these cases are short term marriage cases wherein there are no marital assets and little or no income to spare. The parties are upset, angry and ready to fight-but have no income, assets, or good reason to litigate. Even if parents or grandparents are willing to provide a retainer, decline this case or refer it to the new practitioner.

2. THE LONG TERM MARRIAGE CASE WITH PENSION, DISABILITY, SURVIVOR BENEFITS, CHILDREN, OVERSEAS PARTIES AND OTHER COMPLEX ISSUES.

If you have not handled moderately complex military related cases, beware of the long-term marriage case wherein the parties will litigate pension issues, survivor benefits, disability, jurisdiction and child issues, all wrapped into one complex package. This case should be referred to a military divorce specialist, or a military divorce specialist should be hired as a consultant to assist the attorney of record, to advise the attorney as to the issues presented and in the preparation of memorandums of law, qualified orders, and to provide applicable case law.

3. THE FORUM NOT CONVENIENT CASE

If the husband or wife calls you from another state, say North Carolina where they have a waiting period before one can get a divorce, and you find that both parties and their children are residing in North Carolina and such other state, an immediate red flag should go up. Even if the husband and/or wife are truly Florida residents the court will not likely go forward over the objection of one party or another under the doctrine of inconvenient forum. After much effort the court may say. “You can lead a horse to water but you can’t make him drink” or words to that effect. These sorts of cases smack of forum shopping and often an attempt to obtain an initial geographic advantage, which usually does not work out well for either party. UCCEJA act considerations also apply. Decline this case.

4. THE PARTIAL JURISDICTION CASE; ACCEPT THIS CASE

Another common inquiry you will receive is from the wife and kids who have recently relocated to Florida after the separation of the family in another State or foreign land. In such a case, the wife, after having lived in Florida for 6 months establishes residency for purposes of dissolution of marriage. Further, the children likely acquire a new “home state”.  In these circumstances the court has jurisdiction over the wife, the marriage, and the children. The wife can file for dissolution of marriage and “custody” but there may, or may not be personal jurisdiction over the husband for purposes of support and equitable distribution. Assuming you know that the husband is not a Florida resident, there is still a good chance he may file a general appearance in the case and thereby subject himself to the jurisdiction of the court for child support, alimony, equitable distribution and attorney fees.

If the husband files a motion to dismiss, or does nothing, the wife will have to pursue him in his state of residence or, if he visits Florida, by having him personally served with a Summons and Petition For Dissolution of Marriage in Florida.   Accept this case.

5. THE FLORIDA RESIDENT FOR TAX OR OTHER PURPOSES CASE; DECLINE THIS CASE

You will often be told by the caller that for example, he, the husband is a Florida resident, but is he a resident for purposes of dissolution of marriage jurisdiction? Ask the husband if he has:

Florida Driver’s License?

Voter’s Registration Card?

Has he voted in Florida?

Where is the family autos registered?

Where are family bank accounts?

Did husband file a “State of Legal Residence Certificate” with the military?

When and for how long did Husband actually live in Florida?

Was husband in Florida pursuant to military orders?

Did husband go to high school here and have other family members in Florida?

Did husband become a resident of any other State?

You must be able to determine that the husband or party seeking to file for dissolution of marriage has actually lived in Florida for six months, continuously at some point and maintaining that residence or for periods that total six months, combined with corroborating evidence of residency.

B.  INITIAL DOCUMENTS YOU NEED FROM CLIENT

1. SIGNED RETAINER AGREEMENT

I have several retainer agreements, two are one page in length, and the other is 10 pages in length. No one has ever asked for the “long form”. Here is a short form:

RETAINER AGREEMENT FORM

Client hires attorney to process professionally a dissolution of marriage case. The issues involve equitable distribution of assets and liabilities including a military pension, survivor benefits, alimony, retirement accounts and real property. The parties have/do not have minor children.

The cost retainer amount is ________________. These funds are used for the filing fee, court reporter charges, postage, telephone calls and any normal and customary costs.

The attorney fee retainer amount is _____________________. These funds are placed in a bank account registered with the Florida Bar and administered in accordance with Florida Bar rules and is known as the Attorney/Client Trust Account. Funds are disbursed from this account pursuant to billing at the hourly rate of $____________ per hour. Billings are normally monthly or at the discretion of the attorney. This retainer is refundable.

Right of Attorney To Withdraw:

The attorney will have the right to withdraw from the representation of the client with the permission of the court upon non-payment of fees or if the attorney and client have a disagreement as to the professional processing of the case or for any other proper reason. The client can discharge the attorney at any time.

Right of Attorney To Charging Lien:

The attorney will have the right to a charging lien on all assets acquired through the attorney’s efforts in his processing of the case, as regulated by the court.

Signed:               -------------------------------------             ---------------------------------------
Client                                                       Attorney

2. 12.285 Mandatory Disclose docs- Tax returns, pay stubs, mutual fund and other financial account information, auto titles and registrations, credit card, other debt info, life insurance info, trusts,  corporations, etc.

3. Husband’s LES- Leave and Earnings Statement which contains info such as:

Base Pay,

Basic Allowance For Housing (Non-taxable)

Basic Allowance For Subsistence (Non-taxable)

Sea Pay,

Hazardous Duty Pay,

State of Legal Residence

Rank and Years of Service

Deduction for SGLI premium, (Servicemen’s Group Life Insurance- $400,000)

Allotments

Any documents proving residence of adverse party

II. DRAFTING THE PETITION FOR DISSOLUTION OF MARRIAGE-

There are certain rules for drafting petitions for dissolution of marriage that are well known but sometimes contradicted by case law. The chief among them is “if you don’t plead it the court will not award it”. This may not be strictly legally correct but is a practical truth in many courtrooms. Although there is authority that the court has complete power and jurisdiction to equitably distribute all assets of the marriage, the better practice is to plead specifically the assets you seek to be distributed and to specifically ask for the relief desired.

SAMPLE PETITION FOR DISSOLUTION OF MARRIAGE

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

FAMILY LAW DIVISION

IN RE: THE MARRIAGE OF:

ESPOSA MUY ENOJADO
Petitioner/Wife,

And

EMOCIANTE MACHO MUY CULPABLE

Respondent/Husband

------------------------------------------------------/

COMES NOW,  ESPOSA MUY ENOJADO, first being duly sworn and says:

1. This is an action for dissolution of marriage.

2. The wife has been a resident of the State of Florida for more than six months immediately preceding the filing of this petition.

3. The husband has been a resident of the State of Florida near or at the time of the filing of this petition.

OR

The husband has been a resident of the State of Florida for more than six months immediately preceding the filing of this petition.

OR

The parties maintain a matrimonial domicile in Florida at the time of the filing of this petition.

OR

Husband has been served with a Summons and Petition For Dissolution of Marriage in the State of Florida. This provides the court with personal and subject matter jurisdiction over all issues except pension issues, assuming husband is not a resident of Florida.  (See Burnham v. Superior Court, 495 U.S. 604 (1990).

4. That the husband is on active duty in the United States Navy and is entitled to the benefits of the Servicemember’s Civil Relief Act (2003).

5. That the marriage between the parties is irretrievably broken.

6. That this is a long term marriage and the wife has contributed to the marriage by being a homemaker, helpmate, mother, and she has maintained employment during the marriage. She has also relocated numerous times in support of husband’s military career.

7. That during the marriage, the parties have acquired a valuable military pension which is subject to equitable distribution.

8. That during the marriage, the parties have acquired a valuable survivor benefit plan which should be maintained to secure wife’s interest in the military pension which is necessary for her support.

9. That said survivor benefit plan is a marital asset subject to equitable distribution.

10. That the wife has the need, and the husband has the ability to pay, permanent periodic alimony, rehabilitative alimony, bridge the gap alimony and durational alimony.

11. That the parties have acquired other assets and debts to be equitably distributed between them.

12. That the wife has hired the undersigned attorney and cannot pay all reasonable attorneys fees and costs. The husband has the ability to contribute to the same.

WHEREFORE, the wife requests that the court:

A. Grant a final judgment of dissolution of marriage.
B. Equitably distribute the military pension of the marriage.
C. Award the wife permanent alimony or other alimony.
D. Equitably distribute the other assets of the marriage.
E. Order the husband to maintain former spouse survivor benefit plan or other appropriate life insurance to secure her interest in husband’s military pension and to secure alimony.
F. Award attorney fees and costs.
G. Grant such other relief as is equitable and just.

Dated this ___ day of November, 2013.

Signed and notarized.

III. SERVICE OF PROCESS CONSIDERATIONS

1. SERVICE OF PROCESS ON THE ACTIVE DUTY MEMBER IN ACCORDANCE WITH MILITARY REGULATIONS

Each branch of the uniformed services issues regulations concerning service of process upon active duty members. For example, the Manual of the Judge Advocate General (JAGMAN), Department of the Navy, provides, in summary, the following:

2. SERVICE OF PROCESS WITHIN THE UNITED STATES

Commanding Officers Afloat and Ashore- These commanding officers may permit service of process of federal or state courts upon members, civilian employees, dependents, or contractors residing at or located on a naval installation. Service of process shall not be made without the consent of the commanding officer. Other limitations apply:

A. In State Process-

Civil process originating from a state or federal court from the jurisdiction where the naval station or ship is located will ordinarily be permitted to be served, unless the base or ship is in an area under exclusive federal jurisdiction.

B. Out of State Process-

Civil process which originates from a state or jurisdiction other than that of where the command is located.

In such a case, the respondent is not required to accept the process. The process server need not be brought face-to-face with the respondent to be served. The respondent will be notified that the process has been issued, and the respondent can choose whether or not to accept it. See Navy JAG Manuel, section 0616 (March, 2004).

3. SERVICE OF PROCESS OUTSIDE THE UNITED STATES

A. Process of State Courts; Request To Accept Service of Process Voluntarily

In this instance, the respondent will be notified and asked if he wishes to accept service of process voluntarily. If the respondent will not accept process voluntarily, the party requesting service will be notified and advised to follow the procedures prescribed by law of the foreign country concerned. See, for example, The Hague Convention, reprinted in Federal Rules of Procedure, after Rule 4.  However, if the respondent is in a country that is not a signatory of the Hague Convention, research will have to be done to determine how to serve the respondent under the law of that nation. See 32 CFR Ch. V (7-1-07 Edition) Department of the Army.

B. SERVICE OF PROCESS ABROAD

A. THE HAGUE CONVENTION ON SERVICE OF PROCESS ABROAD.

Attempting to by-pass the Hague Convention with respect to service of process outside of the United States is a serious error. An international incident could occur by violating the territory of an independent sovereign state.

Not many attorneys regularly use the Hague Convention. It is known as the Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. It can be found in Martindale Hubbell, along with the necessary forms to be sent to the “Central Authority”. The convention is an international treaty and was adopted at the Hague in 1965 and became effective February 10, 1969. The text of the treaty is reprinted at 28 U.S.C.A. Fed. R. Civ. P. 4 (Supp. 1985).

Under F.S 48. 194 (West, 1994) service of process on persons outside the United States may be required to conform to the requirements of the Hague Convention. Since the Hague Convention is an international treaty, it is the supreme law of the land and “trumps” procedural rules with respect to service of process. Macivor vs. Volvo Penta of America 471 So. 2d 187, (Fla. 3 DCA 1985), Semet, Lickstein, Morgonstern, et. al vs. Sawada, 643 So. 2d 1188, (Fla. 3 DCA 1994). The documents will have to be translated into German, Japanese, Italian, or other appropriate native language, even if the respondent speaks none of these.
It is error to impose via state law, additional requirements and certified mail service may be acceptable, so long as valid under the law of a signatory country. See in general Am. Jur. 2d, Process, section 321-330.

IV. RESPONSE OF THE HUSBAND AFTER BEING SERVED WITH THE PETITION FOR DISSOLUTION OF MARRIAGE

A. SCENARIO ONE; HUSBAND FAILS TO FILE AN ANSWER OR SERVE ANY PAPER

You serve husband in the State of Florida and he does nothing for 20 days. Can you default him?

1. PROHIBITION OF DEFAULT JUDGMENTS UNDER THE SERVICEMEMBER’S CIVIL RELIEF ACT (2003)

AFFIDAVIT REQUIREMENT:

In every petition for dissolution of marriage, if the petitioner or respondent is on active duty in the Uniformed Services, including the Army, Navy, Marine Corps, both active duty and reserves, members of the National Guard activated for more than 30 days, and commissioned officers of the Public Health Service and the National Oceanic and Atmospheric Administration then the military status of the member should be pled in the petition. This is so because if the servicemember, after being served with process, fails to file any response, then the court, before entering judgment, must require the plaintiff to file an affidavit with the court showing whether or not the defendant is in the military service and showing necessary facts to support the affidavit. 50 U.S.C. Appx. s521(a)-(b)(1)(B).  The knowing filing of a false affidavit with respect to the respondent’s military service is a federal crime. 50 U.S.C. Appx. 521(c). The affidavit should be signed by a person with personal knowledge, not the attorney representing the petitioner. In Kaufman v. Kaufman, 453 F.2d 206 (2d. Cir. 1971), a criminal case, the defendant was found guilty of  filing 90 fraudulent affidavits of non-military service in connection with doing collection work for numerous New York retail stores and commercial companies. Default judgments were obtained based on the false non-military affidavits. Defendant’s convictions were affirmed.

V. SET ASIDE OF DEFAULT JUDGMENTS IMPROPERLY ENTERED

If the petition fails to disclose the respondent’s military status, it is possible that a default could be inadvertently entered. Such a default judgment is subject to being set aside if the servicemember has a meritorious defense to the action or some part of it, and his military service “materially affected” his ability to defend the action. The judgment is not void, but voidable. 50 U.S.C. Appx. 521(g)(1). This could occur many years later, after the member has left active service as the act tolls the time for such a motion to be filed while the member is on active service. Since the Servicemember’s Civil Relief Act is liberally construed to effectuate the congressional purpose of protecting servicemember’s who may be deployed in connection with national defense, a default judgment entered in violation of the act will likely be set aside. The act is to be liberally construed in favor of the member. Obviously the attorney who represented the plaintiff in such a matter was not familiar with the Act.

For a non-military affidavit see Florida Family Law Form 12.912 (b). The form states that the affiant has inquired of the armed forces and the public health service to determine whether or not defendant is on active duty and that certificates’ stating that respondent is not on active service are attached.  The affidavit is filed under penalties of perjury.

1.MILITARY LOCATOR SERVICE:

It is a good idea to write to the Military Locator Service for each branch of military service involved, and the U.S. Public Health Service to obtain a certificate of non-military service and file this in the court file, if the parties have been physically separated for some time and you have any suspicion that an active duty member is the respondent. (See Adoption, Paternity, and Other Florida Family Practice CLE Manual, ‘Effects of Military Service” for more information).

VI.THE DELAY PROVISION OF SERVICEMEMBER’S CIVIL RELIEF ACT

50 App. Sec. 521(d) and 522 (b)(1):

In an action covered by this section in which the defendant is in the military service, the court shall grant a stay of proceedings for a minimum period of 90 days under this subsection upon application of counsel, or on the court’s own motion, if the court determines that-

(1) there may be a defense to the action and a defense cannot be presented without the presence of the defendant; or

(2) After due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.

522(b)(1): Conditions For Stay:

An application for stay under paragraph (1) shall include the following:

(A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the service member’s ability to appear and stating a date when the service member will be available to appear.

(B) A letter or other communication from the service member’s commanding officer stating that the service member’s current military duty prevents appearance and that military leave is not authorized for the service member at the time of the letter.

A.SCENARIO NUMBER TWO, MEMBER FILES FOR STAY OF PROCEEDINGS UNDER SMCRA; IS SERVICEMEMBER ENTITLED TO A DELAY?

In many cases there is no question but that the respondent is on active duty in the armed forces or National Guard but there are minor children involved and child support is not being paid after service of process of proper pleadings. In such a case the service member is most likely not entitled to a stay of proceedings due to bad faith. The Servicemember’s Civil Relief Act is a shield, not a sword and failure to comply with family responsibilities is presumptive evidence of bad faith justifying denial of a motion for stay.  Robbins v. Robbins, 193 So.2d. 471 (Fla. 2 DCA, 1967), Swartz v. Swartz, 412 So. 2d 461 (Fla. 2 DCA 1982).  Even so, the court must take care to make findings that the member’s active service did not “materially affect” his ability to defend the action. In a temporary hearing regarding child support, the ability of the member to use technology, for example to appear by calling in or on videotape, is a pertinent consideration.  Massey v. Kim,, 216 Ga. App.591, 455 SE 2d 306 (Ga. Ct. App. 1995), Keefe v. Spangenberg, 533 F. Supp.  49 (W.D. Okla. 1981). The parties should present to the court the military pay tables, which are a public record available at the DFAS website.

In the event of a custody dispute going to final hearing, the service member may very likely be entitled to a delay if he/she has filed a proper motion supported by affidavits showing material affect and the inability to take leave to attend the court proceeding. The court must make factual findings regarding the service member’s ability to defend and the material effect of military service. Failure to do so is reversible error. Coburn v. Coburn, 412 So. 2d 947 (Fla. 3 DCA 1982), Coleman v. Geathers,795 So. 2d 1092 (Fla. 4 DCA 2001).

PRACTICE POINTER: Each branch of service has regulations requiring members to support their families. If the member is not providing any support, a letter should be written to the member’s commanding officer detailing the facts and circumstances and the amount of support that has been provided. Car payments and credit card payments being made by the member on joint family obligations should be noted, to the extent that they may be considered current support. The member will be counseled, and in an extreme case, non-support can be “service discrediting” conduct warranting disciplinary action. The MILPERSMAN expresses a preference that family disputes be settled by agreement, or that the parties resolve these issues in court. The member should be encouraged to file his/her case in a court of law, if the marriage is irretrievably broken or to determine the correct support amount, particularly if the member has a secret clearance or security position.

PRACTICE POINTER 2: The act is to be liberally construed in favor of the member, however the Act is not to be used as a “sword”, rather as a “shield” for the benefit of the service member. If the service member is not supporting his wife and children, the Act should not be used in a motion for delay to the financial detriment of the family. Abuse of  the act in this fashion is not proper advocacy

For more information and for forms related to applications for delay, see Adoption, Paternity, and Other Florida Family Practice, “Effects of Military Service”, and  “The New Servicemembers’s Civil Relief Act, The Florida Bar Journal, 2004).

VII. THE LONG-ARM STATUTE

Since military dissolution of marriage cases frequently involve families that live in various states or countries at various times during a marriage, knowledge of Florida’s long-arm statute is important.

A.SCENARIO NUMBER THREE-YOU SERVE THE HUSBAND IN ANOTHER STATE, I.E. OUTSIDE THE STATE OF FLORIDA

1. HOW ARE YOUR PLEADINGS?

A pleading error can occur in any case where the respondent is being served with process out of state. FS 48.193 subjects certain persons, whether or not a resident of Florida to the jurisdiction of Florida courts if the do certain acts either personally or through an agent in Florida. In family law matters:

(c ) Owning, using, possessing, or holding a mortgage or other lien on any real property within this state.

(e) With respect to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state at the time of the commencement of the action, or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not.

(h) With respect to a proceeding for paternity, engaging in the act of sexual intercourse within this state with respect to which a child may have been conceived.

(4) If the defendant in his pleadings demands affirmative relief on causes of action unrelated to the transaction forming the basis of the plaintiff’s claim, the defendant shall thereafter in that action be subject to the jurisdiction of the court for any cause of action, regardless of its basis, which the plaintiff by amendment may assert against the defendant.

The long-arm statute has been construed to require the respondent’s residence to proximately precede commencement of the action, and that proximity is to be determined in light of the totality of the circumstances. Garrett v. Garrett, 652 So. 2d 378 (Fla 1 DCA 1995, approved 668 So. 2d 991, Shammay v. Shammay, 491 So. 2d 284 (Fla. 3 DCA, 1986).

VIII. LOSS OF PROTECTION OF LONG-ARM STATUTE BY ABANDONMENT OF THE STATE OF FLORIDA

A. GARRETT V. GARRETT

When a military family moves out of the state of Florida, one spouse, after separation, may not return to Florida and thus obtain personal jurisdiction over the other spouse based on the “prior residence” section of the long arm statute. When the military family moves from Florida, normally they have abandoned Florida as their state of residence and each spouse loses the protection of the long arm statute. Garret v. Garret, 668 So. 2d 991 (Fla. 1996). No case law supports the notion that Garret does not apply to military families as of this writing.

B.THE RACE TO THE COURTHOUSE

There is a very good chance that the parties are involved in a “race to the courthouse”. This scenario plays out with cases pending in two jurisdictions that have concurrent power or authority to resolve the family dispute.

In the event plaintiff fails to plead the long arm statute or the respondent’s status as a Florida resident preceding the commencement of the action, service of process out of state is subject to a motion to quash as being void. McCabe v. McCabe, 600 So. 2d 1181 (Fla. 5 DCA 1992). In such a circumstance, the party who properly invoked the jurisdiction of the court will have won the race to the courthouse and that court will have jurisdiction over the case, because one attorney properly pled the case, and the other did not.

Given the nature of military service and the geographic moves military families make, this is a common scenario.

C. THE MEANING OF “RESIDENCE “UNDER THE LONG-ARM STATUTE

Often it is not a simple matter to determine whether or not the courts of the State of Florida can exercise jurisdiction over an out of state respondent. The analysis starts with the statute,  48.193 supra, and case law.

F.S. 48,193 (e) refers to the defendant “residing” in the State of Florida preceding the commencement of the action. Case law has defined residence as meaning an actual presence in the State of Florida coupled with an intention at that time to make Florida the residence. McCarthy v. Alexander, 786 So.2d 1284, 1285 (Fla. 2 DCA 2001). It is this type of residency that the long-arm statute is concerned with and temporarily residing in Florida without an intention to make Florida one’s legal residence is not sufficient to establish Florida residency within the meaning of the long-arm statute. “Legal residence” means not a temporary residence rather a fixed abode with the present intention of making such abode one’s permanent home. Snyder v. McLeod, 971 So. 2d 166, 169, (Fla. 5 DCA 2007), Wade v. Wade, 113 So. 2d 374, (Fla. 1927). Further, legal residency must be proved by the petitioner and the long-arm statute is strictly construed. Wade, supra, Greyston Tribeca Acquisition LLC v. Renstrom, 836 So. 2d 473 (Fla, 2 DCA 2004).

PRACTICE POINTER: In discovery, or from public records obtain the out of  state respondent’s voter registration information, driver’s license registration, State of Residence claimed on his/her Leave and Earnings Statement, automobile registrations, bank account locations, address used on Federal Tax returns, and related information related to the intention to make Florida ones’  “legal residence“.

If the respondent owns a marital home in the state of Florida and the family resides there, and the custodial parent seeks relief with respect to the home and the minor children, there will in most cases be long-arm jurisdiction and the respondent’s residence in Florida will “proximately precede” the filing of the action under the “totality of circumstances test” even if the respondent relocated to another state as much as seven years prior to the filing of the action (as in Durand v. Durand, 569 So. 2d 838 (Fla. 3 DCA, 1990) or nearly twenty years in  Farrell v. Farrell, 710 So.2d 151, (Fla. 3 DCA 1998) where a matrimonial domicile was established by the non-resident husband who visited the family on holidays.

However, in Forrest v. Forrest, 839 So. 2d 839 (Fla. 4 DCA 2003) the husband’s one week stay in Florida was not sufficient to invoke jurisdiction, even though he purchased a home here and opened a bank account. The family went to Singapore to live where the husband was employed and the wife returned to Florida for knee surgery. While in Florida she filed for dissolution of marriage. She testified that the family intended to permanently reside in Florida after the husband finished his term of employment in Singapore. The wife did ask for exclusive use and possession of the home in her pleadings but still husband’s connections to Florida were considered insufficient under the long arm statute.

Query: But what if the non-resident husband merely signed a mortgage document, not a promissory note, as is often required by title companies in Florida? Would this subject him to personal jurisdiction in Florida?

*Query: Is there not an anomaly in the long-arm statute in that having sex in Florida provides jurisdiction over parties who may have come into the state for a few moments to conceive a child, but married persons have to establish a “matrimonial domicile” here or the respondent must reside here proximately preceding the filing of the action?

IX. THE UNITED STATES CONSTITUTION AND BRITISH CASE LAW PROVIDE THAT SERVICE OF PROCESS IN THE STATE OF FLORDIA IS SUFFICIENT TO CONFER PERSONAL JURISDICTION.

Commonly when family members reside in Florida, one parent lives in Florida and the other will likely come here to visit the children or to assist in family or business matters. In such a case, the person who comes into the State of Florida is subject to service of process.

Many practitioners are unaware that service of process on the respondent in the state of Florida is generally sufficient to confer personal jurisdiction. Burnham v. Superior Court of California, County of Marin, 495 U.S. 604, 110 S. Ct. 2105, 109 L.Ed. 631 (1990).  This basis for the exercise of personal jurisdiction, as discussed by Justice Scalia in the opinion predates colonial times and was a traditional basis to exercise personal jurisdiction in ancient England.

However, personal service of process in Florida may not be sufficient to vest federal subject matter jurisdiction in the court to divide a military pension, which depends on domicile, residence unconnected to being stationed in the state, or consent by way of asking for affirmative relief. See 10 U.S.C. sec. 1408.

A.JURISDICTION OBTAINED; WHAT RELIEF IS AVAILABLE?

1. INCOME FOR PURPOSES OF DETERMINING CHILD SUPPORT AND ALIMONY

1(a) MILITARY ALLOWANCES TO BE INCLUDED IN SUPPORT CALCULATIONS

Assuming the member has been properly served and that both subject matter and personal jurisdiction have been obtained, and you are in possession of the member’s financial information, including a Leave and Earnings Statement, arguments as to how to compute child support and alimony commonly ensue.

In computing the amount of child support, normally you should include “allowances” under F.S. 61.30 such as BAH AND BAS. BAH is a monthly sum paid to members of the military who do not reside in government-supplied housing. 37 USC sec. 403 (a)(1), Army Regulation 37-104-4, sec. 12-1. The amount of BAH, which is intended to offset the cost of civilian housing, varies according to the member’s pay grade, geographic location, and dependency status. BAS is an additional monthly sum paid to active duty members to subsidize the cost of meals purchased for the benefit of the individual member on or off base.  37 USC sec. 402 (a)(1), Army Regulation 37-104-4, sec. 11-3. The amount of BAS is based upon average food costs as determined by the federal government. BAH and BAS are tax free and normally should be included in the calculation of child support, unless in a particular case such as an extremely high housing cost area where the amount of income included perhaps should be less, in the discretion of the court. Massey v. Evans,68 AD3d 79, (NY App. Div. 4th Dept. 2009). In re Marriage of Stanton, 190 Cal. App. 4th 547, 118 Cal. Rptr. 3d 249 (Ct. App. 2010). To my knowledge, there is no Florida case on point.

X. DEMANDING CONTACT RIGHTS WITHOUT SUBMITTING TO COMPLETE                   JURISDICTION

Minor children of the marriage may reside in Florida but Dad or Mom is a non-resident. The non-resident parent need not submit to complete jurisdiction of the Florida court’s in order to have court-ordered contact rights. This statute seems unknown to the Florida bar or perhaps out of state parents are “weak kneed” when it comes to their rights to be parents.

61.510 Appearance and limited immunity

(1) A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.

(2) A person who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in this state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.

(3) The immunity granted by subsection (1) does not extend to civil litigation based on an act unrelated to the participation in a proceeding under this part which was committed by an individual while present in this state.

In representing, the non-custodial spouse seeking visitation with minor children residing in Florida, there is “limited immunity” under Florida’s Uniform Child Custody Jurisdiction and Enforcement Act such permitting the non-resident parent to file an action for visitation in Florida and come to Florida for a court proceeding connected thereto. If the statute is carefully followed, the non-custodial parent can obtain his visitation order, come to Florida to pick up and return the children, and have limited immunity from service or process. For the statute to work, counsel must carefully coordinate any visit to Florida with his client to a court proceeding requesting visitation. Otherwise, the client may be served in state under Burnham, and jurisdiction thereby obtained.

XI. SPECIAL FLORIDA STATUTORY PROTECTION FOR DEPLOYED MEMBERS

F.S.A. sec. 61.13002 (Eff. July 2011)

(1) If a supplemental petition or a motion for modification of time-sharing and parental responsibility is filed because a parent is activated, deployed, or temporarily assigned to military service and the parent’s ability to comply with time-sharing is materially affected as a result, the court may not issue an order or modify or amend a previous judgment or order that changes time-sharing as it existed on the date the parent was activated, deployed, or temporarily assigned to military service, except that a court may enter a temporary order to modify or amend time-sharing if there is clear and convincing evidence that the temporary modification or amendment is in the best interests of the child. However, a parent’s activation, deployment, or temporary assignment to military service and the resultant temporary disruption to the child may not be the sole factor in a court’s decision to grant a petition for of modification of permanent time-sharing and parental responsibility. When entering a temporary order under this section, that court shall consider and provide for, if feasible, contact between the military service member and his or her child, including, but not limited to, electronic communication by webcam, telephone, or other available means. The court shall also permit liberal time-sharing during periods of leave from military service, as it is in the child’s best interests to maintain the parent-child bond during the parent’s military service.

(2) If a parent is activated, deployed, or temporarily assigned to military service on orders in excess of 90 days and the parent’s ability to comply with time-sharing is materially affected as a result, the parent may designate a person or persons to exercise time-sharing with the child on the parent’s behalf. The designation shall be limited to a family member, a stepparent, or a relative of the child by marriage. The designation shall be made in writing and provided to the other parent at least 10 working days before the court-ordered period of time-sharing commences. The other parent may only object to the appointment of the designee on the basis that the designee’s time-sharing visitation is not in the best interests of the child. When unable to reach agreement on the delegation, either parent may request an expedited court hearing for a determination of the designation.

(3) The service member and the nonmilitary parent shall cooperate with each other in an effort to reach a mutually agreeable resolution of custody, visitation, delegation of visitation, and child support. Each party shall provide information to the other party in an effort to facilitate agreement on custody, visitation, delegation of visitation, and child support. Agreements on designation of persons to exercise time-sharing with the child on the parent’s behalf may also be made at the time of dissolution of marriage or other child custody proceedings.

(4) If a temporary order is issued under this section, the court shall reinstate the time-sharing order previously in effect upon the service member parent’s return from active military service, deployment, or temporary assignment.

(5) Upon motion of either parent for enforcement of rights under this section, the court shall, for good cause shown, hold an expedited hearing in custody and visitation matters instituted under this section, and shall permit the service member to testify by telephone, video, teleconference, webcam, affidavit, or other means where the military duties of the service member parent have a material effect on the parent’s ability, or anticipated ability, to appear in person at a regularly scheduled hearing.

(6) If a temporary order is entered under this section, the court may address the issue of support for the child by:

(a) Entering an order of temporary support from the service member to the other parent under s. 61.30;

(b) Requiring the service member to enroll the child as a military dependent with DEERS, TriCare, or other similar benefits available to military dependents as provided by the service member’s branch of service and federal regulations; or,

(c) Suspending, abating, or reducing the child support obligation of the no service member until the custody judgment or time-share order previously in effect is reinstated.

(7) This section does not apply to permanent change of station moves by military personnel, which shall be governed by s. 61.13001.

* Constitutional challenges to the time-sharing designation provisions of the law are to be expected with respect to definition of “family members” and on grandparent contact rights (or lack thereof) grounds.

XII. MILITARY PENSION ISSUES; VALUE AND VALUATION

Surprisingly, many practitioners are not aware of the value of a military pension after twenty years or more of service. Typically, it is the most valuable asset in a long term military marriage. According to recent pay tables, an E-6 (Petty Officer First Class, Staff Sgt, Tech Sgt.)with 20 years of military service will receive about $1,825.00 per month in taxable retirement benefits, and an 0-6 (Captain, Colonel) will receive about $4544.00 per month with 20 years of military service. The numbers go up significantly with longer years of service. Assuming the parties are 45 years old at retirement and assuming a life expectancy of another 35 years, one half of the value of the pension in the enlisted case is about $383,000.00 and $954,000.00, in the 0-6 case, respectively, not reduced to present value. Thus failure to properly distribute the military pension or receive proper consideration for waiving the same is a serious error that cannot be corrected after final judgment, in the great majority of cases.

A.FLORIDA STATUTE 61.076

In Florida, pursuant to FS 61.076 (1988) all vested and non-vested pensions or retirement benefits are marital property and must be considered in the equitable distribution scheme in court.

Also, the statute requires the final order to express itself in a fixed dollar amount or a percentage of “disposable retired or retainer pay” and for the order to certify that the parties were married for more than ten years during which time the member was on active duty. Further, for active duty cases, that the Servicemember’s Civil Relief Act was observed during the proceedings. Even before passage of Florida’s equitable distribution law, case law had found in Florida that a military pension was marital property subject to equitable distribution. See Diffenderfer and Pastore cases.

B. CLASSIFICATION VS. VALUATION OF THE MILITARY PENSION

For purposes of classification as marital or non-marital, in the absence of a valid separation agreement, section F.S.61.075(6) (2005) provides a bright line rule for setting the date to be used in determining the marital classification of assets and liabilities. The cut of date is the date of the filing of the petition for dissolution of marriage. Willman v. Willman, 944 So.2d 1151 (Fla. 1 DCA 2006).

For purposes of valuation, F.S. 61.075 (eff. July 1, 2008) provides:

(7) The cut off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as in the judge’s discretion, the circumstances require. (Emphasis supplied).

Thus it is important do distinguish between the “cut off” date for classification of assets, from the date used to value assets. The “cut off” or classification date is a bright line rule, the date of filing of the petition for dissolution of marriage. The valuation date is the discretionary date chosen by the trial judge to do equity, with the limitation being the date of the final judgment of dissolution of marriage. Rao-Nagineni v. Rao, 895 So.2d 1160 (Fla. 4 DCA 2005). Boyett v. Boyett, 703 So. 2d 451 (Fla. 1997; trial court may not include any contributions to retirement account made after original judgment of dissolution).

Valuation of retirement benefits is fact-intensive and varies depending upon the plan, and the trial judge must determine the equitable valuation with the limitation being the valuation is not to include post-marriage contributions. Boyett at 453. See also Deloach v. Deloach 590 So. 2d956 (Fla. 1 DCA, 1991), approving valuation of military retirement benefits at rank and pay rate member attains as of date of dissolution). Same: Trant v. Trant, 545 So. 2d 428 (Fla. 2 DCA 1989).

Practice Pointer: In cases where member is promoted after the filing of the petition for dissolution but before entry of final judgment, the issue is when did the pension “accrue” in the language of 61.075. Since promotions are based on a period of service that may be several years in length, it may be equitable to value the pension as of date of final judgment.

Bonus Practice Pointer: In discovery, obtain the member’s fitness reports for 2 yrs. prior to date of filing of the petition for dissolution of marriage. If the member was recommended for promotion, it would appear that the promotion is the result of marital labor.

XIII. MILITARY PENSION QUALIFIED ORDERS

The military pension should be equitably distributed as a FIXED DOLLAR AMOUNT OR AS A PERCENTAGE of “disposable retired or retainer pay”.  Excepting certain formula orders in this discussion, the Former Spouse Protection Act in 10 U.S.C. sec. 1408 and FS 61.076 require FIXED DOLLAR AMOUNT OR PERCENTAGE ORDERS. A fixed dollar amount is simple but has the disadvantage of not including automatic cost of living increases, (COLA). A separate check would have to be sent say annually by the retired member to a former spouse representing COLA or front loaded in the settlement. A percentage is advisable if all facts are known and the member is retired, in pay status. In that event COLA is automatic. But a percentage of what? What is the asset that is being divided? Or, how is the military pension defined?

THE MAGIC WORDS:

A. “DISPOSABLE RETIRED OR RETAINER PAY”

Herein DRRP. DRRP means gross pay less:

1. Debts owed to the US Government,
2. Amounts waived to receive a service connected disability,
3. Survivor Benefit Plan Premium for the spouse getting a share of the pension

See 10 U.S.C. sec. 1408 (a)(4)

Each side will pay their own taxes and be issued a 1099 at the end of the year.  Each side will fill out a tax withholding form for Defense Finance and Accounting Center.

Formula Orders- DFAS has approved certain formula orders-in general the item that is not known when the member is on active duty and the pension is not in pay status is the denominator of the fraction; i.e. the total number of years and months of military service. DFAS will plug that number into the formula and an “order acceptable for processing” can be drafted prior to the member’s retirement.

Failure to draft a “qualified military order” on day one or using language subject to interpretation means that the parties may litigate the meaning of their agreement after DFAS rejects the “nonqualified” military order. Such litigation can be time consuming and expensive.

B.PITFALL: UNQUALIFIED ORDER

Here is an example of language used by the parties creating an “unqualified order” resulting in very expensive post judgment litigation:

Military Retirement- The husband is a beneficiary of a retirement plan with the United States National Guard. The wife is entitled (after the reduction for the SBP premium) to a 37.5 percent interest in the retirement plan as it relates to an E-7 pay scale and the Husband is entitled to the remaining payment of the retirement benefits. The marital portion of the pension accrued from the party’s date of marriage, August 22, 1969, until the party’s date of separation, May 1, 1994.”

Note the problems-

1. Not a fixed dollar amount;
2. Not a percentage;
3. Disposable retired pay not mentioned;
4. E-7 pay scale-what year? Is it 1994 or the date the parties signed the agreement in 2000?
5. What about enhancements to the pension between 1994 and the year 2000 when the parties signed the agreement?

This language was rejected by Defense Finance and Accounting Service and the parties dispute the meaning of the language. Motion For Summary Judgment denied. Neither party understands the language and the court suggested hiring an expert. An independent action could be filed to set aside the entire marital settlement agreement. Eventually this case was settled.

C. SAMPLE QUALIFIED MILITARY ORDER

IN THE CIRCUIT COURT OF THE STATE OF FLORIDA, COUNTY OF ORANGE

CASE NO: 2013-0000

IN RE: THE MARRIAGE OF:

JOHN RETIRED MEMBER

And

MARY RETIRED MEMBER

---------------------------------------------/

QUALIFIED MILITARY ORDER

THIS CAUSE came before me for trial and the court having taken the testimony of the parties and received documents into evidence finds and decides as follows:

1. The petitioner’s social security number is: _____________________.

2. The respondent’s social security number is: ____________________.

3. The parties were married on June 1, 1990. Their marital status was terminated on January 1, 2011 by final order of this court entered in Orange County, Florida. This order is entered incident to the aforementioned order.

4. The parties were married for a period of ten or more years during which time the petitioner performed at least ten years of creditable military service.

5. If the military member was on active duty at the time of this order, petitioner’s rights under the Servicemember’s Civil Relief Act, 50 U.S.C. App. 501-548 and 560-591, have been observed and honored.

6. This court has jurisdiction over the petitioner by reason of (choose those that apply) (A) his or her residence, other than because of military assignment, in the territorial jurisdiction of the court, during the (divorce, dissolution, annulment, or legal separation) proceeding, (B) his or her domicile in the territorial jurisdiction of the court during the (divorce, dissolution, annulment, or legal separation) proceeding, or C his or her consent to the jurisdiction of the court. (*issue of state law; request for affirmative relief).

CONCLUSIONS OF LAW:

1. The court has jurisdiction over the subject matter of this action and the parties hereto.

2. Respondent is entitled to a portion of petitioner’s military retired pay as set forth herein.

IT IS THEREFORE ORDERED THAT:

3. The respondent wife is hereby awarded, as equitable distribution of property 50% of the member’s disposable retired pay. (Percentage awards include cost of living allowances).

OR
(Active duty formula)

4. The former spouse is awarded a percentage of the member’s disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is 240 months of marriage during the member’s credible military service, divided by the member’s total number of months of credible military service.

OR
(Reserve formula)

5. The former spouse is awarded a percentage of the member’s disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is ______ Reserve retirement points earned during the period of the marriage, divided by the total number of Reserve retirement points earned.

OR

(Active duty hypothetical calculated as of time of division, for all members, regardless of service entry date)

6. The former spouse is awarded ___% of the disposable military retired pay the member would have received has the member retired with a retired pay base of ____ and with ____ years of credible service on __________.

DONE AND ORDERED at Orlando, Florida this ___ day of January, 2013.

---------------------------------------------
CIRCUIT JUDGE

*Complex hypothetical formulas omitted from this sample order.

XIV.DEPARTMENT OF DEFENSE REGULATIONS AFFECTING EQUITABLE DISTRIBUTION AND SUPPORT ORDERS

There have been issued regulations significantly affecting former spouse payments from military retired pay and forms issued. See Volume 7B, Chapter 29, DoD Financial Management Regulations, February, 2009.

SUMMARY OF CHANGES:

Alimony: Clarified that the definition of alimony includes attorneys fees, interest, and court costs. Alimony arrearages cannot be collected from retired pay.

Child Support: Clarified that the definition includes costs for health care, arrearages, interest, penalties, and related relief.

Court Orders: Clarifies that an order termed a QDRO, if otherwise in proper form, will be accepted.

Creditable Military Service: Clarifies that CMS means service counted towards the entitlement to receive military retired pay.

*Property Division Other Than Retired Pay: A former spouse can collect a property division, other than a retired pay award, by garnishment, if the order awards it to the former spouse and if the former spouse was also awarded alimony, child support, or a division of retired pay.

Administrative Appeal Provision: If the retired member can show that the court order attempting to divide his retired pay is defective, or has been amended, appealed, or set aside, DFAS will not start the payments. Defenses would include lack of personal or subject matter jurisdiction, compliance with the 10/10 rule, and violation of the Servicemember’s Civil Relief Act.

SBP Premium: The court order must state that it is being deducted from the member’s retired pay. It cannot say it is being deducted from the former spouse’s portion of the member’s retired pay.

Disposable Retired Pay Deductions: Clarifies that only those deductions authorized by law will be honored such as amounts owed the United States, fines and forfeitures ordered by a court-martial, amounts waived to receive compensation under Title 5 or 38 of the United States Code, SBP premiums for the spouse applying for a retired pay award. Provisions providing for other deductions such as for private life insurance premium are unenforceable.

Payment Limitations: 50% for payments of retirement benefits only. If there is a retirement division and garnishment support, up to 65% of the members disposable earnings calculated IAW 42 U.S.C.A. 659.

COLA- Automatically follows a percentage award, not a fixed dollar amount award.

Former Spouse’s retired pay award cannot be garnished, even for child support owed to the member.

*It would appear that this last provision exhibits either gender bias or an effort to reduce government work loads at the expense of fairness.

XV. VETERAN’S ADMINISTRATION WAIVER ISSUES AND THE LIKE

A. THE VA WAIVER NIGHTMARE; NO INDEMNIFICATION PROVISION, NO ALIMONY, MEMBER RETIRES OVERSEAS

Assuming that the parties did divide “disposable retirement pay” correctly with a fixed dollar amount order or a percentage order, problems may arise post-judgment. These problems occur when the member has a service connected disability that was “latent” at the time the dissolution of marriage occurred because the member was on active duty or it did not manifest itself until several years after final judgment. In such cases, the member can apply for a “service connected disability” and receive a tax free “pension” or “disability benefit” from the Department of Veteran’s Affairs. However, under the law, if the disability is less than 50%, the member must waive, dollar for dollar the “regular” pension in exchange for the “disability waiver” amount. By doing so, the former spouse will lose from her portion of the pension, one half of the amount waived by the veteran to receive his tax free disability check. The former spouse will cry foul at the reduction of her share post judgment, which constitutes a unilateral modification of the property settlement post-judgment by the member. If the marital judgment contains an indemnification clause, requiring the member to not waive the regular retirement in such a fashion as to reduce wife’s share of the regular retirement, the case is solvable, particularly if alimony was awarded or jurisdiction retained to do so.  Abernethy v. Fishkin, 699 So. 2d 235 (Fla. 1995). In the event there is no indemnification provision, at least one Florida court has granted relief to the non-military spouse. See Longanecker v. Longanecker, 782 So. 2d 406 (Fla. 2 DCA 2001). However, if the member has retired overseas, there may be no effective solution. For certain concurrent receipt cases, there is a solution for the non-military spouse.

PRACTICE POINTER: COMBAT RELATED SPECIAL COMPENSATION

*Be aware that under developing case law, a waiver of regular retirement pay for Combat Related Special Compensation, which is not divisible retired pay, (10 U.S.C. 1413A) after final judgment may entitle the former spouse to  indemnification, even without language in the final judgment providing for such indemnification.  Bandini v. Bandini,  935 NE 2d 253,(Indiana Ct. App. 2010).

XVI. DEFAULT JUDGMENT CONUNDRUM; DIVIDING A MILITARY PENSION AGAINST A RETIRED MEMBER NOT A RESIDENT OF FLORIDA

Under 10 U.S.C. sec. 1408 federal pension jurisdiction only exists if the member is:

1 A resident of the state, but not due solely to military orders,
2.A domiciliary of the state;
3. He consents to jurisdiction as by signing a marital settlement agreement or asking for affirmative relief in state court.

In a case where the retired member fails to participate in any fashion in the case and a default is taken, and the pension is distributed pursuant to the default without affirmative proof of pension jurisdiction, a most interesting problem arises. First, the member may attack jurisdiction administratively at DFAS, submitting proof, for example, that he has a New York drivers’ license, real estate, and voted in New York on a regular basis. In short, he may prove he is a New York resident. The wife may then sue in New York and be met with the argument that Florida already distributed the pension pursuant to a default and that the matter has already been decided and is “res judicata”. Should this argument succeed, the wife will be out of luck and have a pension division order from Florida that is not enforceable. For a similar example see The Military Divorce Handbook, Mark Sullivan, Esquire, 2007. (Available from the American Bar Association, Family Law Section).

Query: If Florida lacked jurisdiction, is it really res judicata?

NOTE: If the state in which the retired member is a resident and domiciliary lacks an “omitted asset” statute allowing partition of the military retirement, this would be another basis to deny relief to the former spouse later seeking a portion of the military retirement.

In any event, client will be very unhappy with all the fees spent.

Note that in Florida we do have an “omitted asset” statute, see F.S. 61.075

XVII.COVERTURE FRACTIONS USED TO DIVIDE A MILITARY PENSION

Normally when one divides a military pension, or any pension for that matter, we divide it if, as, and when the pension participant receives it. This is known as the “deferred distribution method” and is discussed at length in Deloach v. Deloach, 590 So. 2d 956 (Fla. 1 DCA 1991), disapproved on other grounds 703 So. 2d 451. The so- called Deloach formula, which is not mandatory is as follows:

MONTHS OF MARRIAGE
---------------------------------------------
MONTHS OF MILITARY SERVICE           =

PERCENTAGE OF FUTURE MONTHLY RETIREMENT PAYMENTS EARNED DURING THE MARRIAGE

X

½ OF MILITARY MEMBER’S DISPOSABLE RETIRED OR RETAINER PAY AS DEFINED BY LAW

This formula will award to the non-military spouse a “smaller piece of a bigger pie” in a case where the member is on active duty and the pension is not in pay status. It will also award to the non-military spouse non-marital enhancements to the military pension based upon time in grade and promotions, which under Florida law, are considered non-marital. In many jurisdictions, these enhancements are considered to be the product of a “foundation of marital effort” but this theory has not been accepted by Florida courts. In Florida, the amount of a retirement plan available for equitable distribution may not include any contributions made after the date of the original judgment of dissolution of marriage. Boyett v. Boyett, 703 So. 2d 451 (Fla. 1998).  Therefore, amounts attributable to time in grade and promotions which accrue after dissolution should be excluded from equitable distribution. Lawrence v. Lawrence, 904 So. 2d 445 (Fla. 3 DCA, 2005). These amounts may not be insignificant. For example, according to the 2007 Retired Military Almanac, a retired army Lt. Col. or Navy Commander with 20 years of military service receives $3,579.00 in pension benefits monthly. However a retired full army Colonel or Navy Captain with 27 years of military service receives $6,099.00 in retirement benefits per month, a difference of $2,520.00 per month or $30,240.00 per year.  Thus failure to properly value a military pension can be a costly error for the military member or an unwarranted benefit for the receiving spouse. Given the passage of time and increasing inflation and military compensation, these figures can be increased by nearly 20%.

A. THE “CORRECT” COVERTURE FRACTION IN FLORIDA IS:

50% OF THE FOLLOWING:

“DISPOSABLE RETIRED PAY” AS A LT. COL/CDR WITH 20 YRS. SERVICE TIMES A FRACTION.......

YEARS OF MARITAL PENSION SERVICE

-------------------------------------------------------------------------------

20 years service (Normal vesting date)

This fraction excludes non-marital promotion and longevity enhancements consistent with Boyett and Lawrence. In the event there is less than 20 years service, we still use 20 years as the denominator because 20 years is the normal vesting date. Alternatively, the total years of service can be left as the unknown or the X in the coverture fraction.

Practice Pointer: Be aware that the member may have been selected for promotion based upon military performance that pre-dated the dissolution of marriage and can be fairly said to have “accrued” during the marriage, even though the promotion is not effective for pay purposes until after the dissolution of marriage. The court will have to decide what valuation date is fair and equitable.

B. COVERTURE FRACTION IN A RESERVE PENSION DIVISION

Many attorneys, naturally enough are not familiar  with the military reserve pension system. There are many Army, Navy, Marine Corps, Coast Guard and National Guard reservists. These soldier’s used to be called “weekend warriors” because they drilled one weekend per month and perhaps two weeks during the summer. They commonly earned only 60 retirement points per year and are eligible to retire after twenty “good” years but do not receive a retirement check until age 60. A soldier or sailor on active duty who enlisted at age 18 may retire after 20 years active service and receive a retirement check at age 38 for the rest of his or her natural life. However, a reservist drilling on weekends and going on active duty for two weeks per year normally receives a retirement check commencing at age 60. Nowadays, the role of the reserve component forces is greatly increased and it is not uncommon for reservists to be activated for long periods of time so that their military service can more closely resemble that of active duty forces. There may be a combination of active duty years where the reservist was on active duty 356 days per year and there may be other years where the member only earned 60 points. There may be “bad years” where the member did not earn enough points to qualify that year for retirement as a “good year” but the points themselves are added to the total of points earned by the reservist.

In dealing with a reserve retirement, you must obtain the “point record” and determine how many retirement points were earned during the marriage. Often there is a period of non-marital active duty generating 365 points a year for four or more years which must be excluded.  The coverture fraction is:

MARITAL RETIREMENT POINTS

----------------------------------------------                   DIVIDED BY TWO=

TOTAL RETIREMENT POINTS

WIFE’S PERCENTAGE OF RETIREMENT POINTS X DISPOSABLE RETIRED PAY

Thus you can see that using months of marriage and months of service would result in an inaccurate fraction, because the retirement points earned are often different in each year of service.

XVIII. IMMEDIATE OFFSET PROBLEMS; GIVING ONE PARTY THE HOUSE OR OTHER ACCOUNTS IN EXCHANGE FOR THE PENSION

In many military-related dissolution of marriage cases, we are dealing with long term marriages in excess of thirty years and parties have houses, businesses, and other significant assets. Although normally we divide pensions “if, as, and when” this traditionally was done because there were no other significant offsetting assets in the case. However, if there are other assets, the preferred approach under Deloach and other cases historically was to separate the parties financially and for all time to prevent further litigation and to bring finality to the case. To do so, a pension had to be valued by a qualified actuary and competent evidence presented to the court or agreed to by the parties during mediation. To accomplish “immediate offset” and to “trade” a military pension for another significant asset, the pension must be reduced to present value. A senior officer’s pension with say 27 years of active service (Navy Captain, Army Colonel; i.e. 06) is worth in the 1.5 million dollars range, reduced to present value. With the decision of Acker v. Acker, 904 So.2d 384 (Fla. 2005) immediate offset has to be reconsidered. Acker teaches that once pension assets are equitably distributed, the court may consider those assets distributed to a party in determining ability to pay alimony. Thus it is entirely possible that hard assets could be distributed to a wife, she could spend those assets, incur a medical condition, and return to court for an award of alimony payable from the military pension which was theoretically equitably distributed to the husband.

The true impact of Acker is yet to be tested in the reported cases and this subject needs to be debated intently by the matrimonial bar.

XIX. PENSION DEFENSES AVAILABLE TO THE MILITARY MEMBER

There are several pension defenses available which should be considered, among them:

1. No jurisdiction under FSPA, discussed supra,

2. Your client has a bona fide disability and cannot work. He is rated at 50% disability but has not been able to secure employment and needs the pension to survive. Not he has a disability on paper and can make $30,000.00 or more annually at a civilian job. The court has discretion to not award wife a portion of the regular pension if needed for the support of the disabled veteran.

3. Your client may have ten years service and decide he has no obligation to complete twenty years of military service, only to have wife (or dependent husband) receive 25% of the disposable retired pay when he/she retires.

4. Your client is a bona fide resident of Puerto Rico where they do not divide military pensions.

5. Your client lives in a foreign land and there is only 9 years of marital pension service; i.e. no direct payments possible and no contempt- should this be used as a bargaining tool?

6. Your client is dead, no pension.

XX. INSURANCE ISSUES:

A tension exists between the notion of providing security for a family and avoiding post-mortem alimony. If the family in a long-term marriage, provided life insurance or survivor benefits for themselves, the insurance and benefits are normally considered to be marital assets. If no such insurances nor survivor benefits were established during the marriage, then there are no such assets to be distributed. Military members who have completed twenty years of credible service automatically have survivor benefits by federal statute, and these survivor benefits are considered to be marital property which should normally be equitably distributed. If the member has served less than twenty years on active service, we enter the realm of judicial discretion.

A. INSURING THE MILITARY PENSION

The basic point to be aware of is that a military pension stops or terminates upon the death of the retired member. Thus if it is not insured, the wife’s payments will stop. If the parties were married when the member retired, federal law requires the member to elect survivor benefit plan at the maximum rate for his wife, unless the parties agree in writing to waive the benefit or elect a lesser rate of coverage. The “maximum rate” means that the surviving spouse will receive 55% of the base amount of retirement pay, plus COLA, in the event of the retired member’s predeceasing his spouse.

However, upon dissolution of marriage, the spouse becomes a “former spouse” and is not covered with SBP, UNLESS YOU OBTAIN A COURT ORDER NAMING THE FORMER SPOUSE AS THE IRREVOKABLE FORMER SPOUSE BENEFICIARY OF SURVIVOR BENEFIT PLAN AT THE MAXIMUM RATE AND PERFECT THE COURT ORDER BY SERVING IT AND THE “DEEMED ELECTION” FORM ON DFAS WITHIN ONE YEAR OF THE DATE OF DISSOLUTION OF MARRIAGE. See 10 U.S.C. sections 1447 and 1448; 10 U.S.C. 1448 (d)(3)(B).

Note that in a case where SBP was elected at retirement, if counsel fail to serve the “deemed election” form within one year and the member remarries, his new wife automatically becomes the beneficiary of SBP! 10 U.S.C. 1448(a)(6); 2007 Retired Military Almanac, page 216. (YWPA; Younger Wife Protection Act or YSPA, Younger Spouse Protection Act).

The failure to lock or secure former spouse SBP is one of the worst errors counsel can make, and one of the most frequent.   Be aware that although there are occasionally “open election” windows for SBP, they cannot be court ordered. See Pub. L. 106-65, October, 1999.

In the event of the premature death of the member and the new wife getting SBP, a sure case of legal malpractice exists. In this event an economist can, considering the age, health, and life expectancy of the parties, determine an actuarial value of the lapsed SBP and a jury could assess damages.

If you discover the former spouse SBP error while all parties are alive, and the member violated the court order to provide former spouse SBP, reconfiguration may apply.

PRACTICE POINTER: THE REMEDY OF RECONFIGURATION

In Heldmyer v. Heldmyer, 555 So. 2d 1324 (Fla. 5 DCA, 1990), a case that was appealed several times, the court had ordered that the husband name his wife as irrevocable survivor benefit plan beneficiary after a change in federal law allowing a state court to order a husband to name his wife as beneficiary of SBP. (10 U.S.C. sec. 1447-55; if a divorce occurs on or after November 14, 1986, a court may order a member or retiree to provide SBP protection to a former spouse). However, while the case was on appeal the husband remarried and designated his second wife as beneficiary of SBP. The court said:

“It is now impossible for the trial court to enter an order requiring the deceased husband to designate Nancy the survivor of the military pension. To compensate Nancy for this loss, we remand to the trial court for a determination of the valuation of Nancy’s portion of the military pension, and for a full and complete reevaluation of the property distribution of the parties as of the date of the original judgment of dissolution. Nancy is to be compensated for the loss of her portion of the pension from property awarded to Harry. If the value of the marital property is insufficient to compensate Nancy for her loss of the pension, the trial court may enter a judgment for the balance, enforceable against Harry’s non-marital assets, now a part of Harry’s estate.”

For a more recent case involving the failure or lapse of survivor benefit plan and the authority of a trial court to reopen equitable distribution in an appropriate case see Wise v. Wise, 768 So. 2d 1076 (Fla. 1 DCA, 2000).

These cases stand for the proposition that a court can actually revisit the equitable distribution scheme and “reconfigure” it to compensate a former spouse for the value of the lost benefit. It may in that event be necessary to hire an actuary to value the lost SBP, using mortality tables and the like. One can be certain that convincing the court to “start over” and reconfigure equitable distribution will not be automatic, and it is possible that assets will have been transferred to third parties to avoid such reconfiguration.

PRACTICE POINTER:

Note that the one year period to serve the “deemed election” form does not necessarily run from the date of the dissolution of marriage. Rather, the one year period runs from the date of the first court order that imposes the substantive obligation to elect former spouse survivor benefit plan. Thus, if the final judgment of dissolution of marriage silent as to SBP, but a later valid court order imposes the SBP obligation in the first instance, the one year period will run from the later order.

See Matter of Colonel William F. Magill, Appeal From DFAS to U.S. Government Accountability Office, September 2, 1992.
See also Claims Appeals Board Decision no. 99102801.

BONUS PRACTICE POINTER:

If the appropriate Board For Correction of Military Records corrects the member’s record to indicate that he elected former spouse SBP for his former spouse within the one-year period, that decision will be binding on all government officers, including the Claims Appeals Board. However, to do so will likely take the consent of the member’s current spouse.

BONUS PRACTICE POINTER NUMBER 2:

NUNC PRO TUNC ORDERS- Which are entered to “get around” the one year deemed election rule, will not be accepted. See Sikes, Comptroller General of the United States, 1993.

DOUBLE BONUS PRACTICE POINTER NUMBER 3:

Make sure you use the relatively new “deemed election” form instead of a letter which practitioners used for years. Make sure the certified mail receipt green card is kept in a safe place.

B. SPOUSE SURVIVOR BENEFIT PLAN MUST BE CONVERTED TO “FORMER SPOUSE” SBP

IN A LONG TERM MARRIAGE, YOUR CLIENT, SPOUSE OF THE MEMBER HAS SBP; IN THE DIVORCE CASE SBP MUST BE CONVERTED TO “IRREVOCABLE FORMER SPOUSE SBP” AT THE MAXIMUM RATE.

Spousal SBP must be converted in the dissolution of marriage case. If at the time of the member’s retirement he is married and, after March 1, 1986 is required to elect spousal SBP at the maximum rate unless his spouse agrees to a lesser amount or to waive SBP. (See P.L. 99-145, 99 Stat. 676, 677) The maximum SBP provides the surviving spouse with 55% of the member’s retired pay if he should predecease her and is inflation adjusted. The common error is for counsel to assume that SBP is an asset that automatically continues after the dissolution of marriage when in fact “former spouse SBP” must be ordered by the court.

C. SBP IS ORDERED, BUT AN ATTEMPT IS MADE TO MAKE THE WIFE PAY THE PREMIUM THUS RESULTING IN A NON-QUALIFED SBP ORDER

It is often the case that the member has no objection to former spouse SBP but demands language that the wife can have SBP but she must pay the premium. The premium is, in general, 6.5% of the base amount of retired pay selected to be insured. Thus if the base amount of retired pay is $3000 per month, the SBP premium is $195.00 per month. SBP premiums must be deducted from gross retirement pay in arriving at “disposable retirement pay” and cannot be shifted to one party or the other except by manipulating the percentage of “disposable retirement pay” the wife should receive. If an attempt is made to have the wife pay the SBP premium to DFAS, the SBP order will be unacceptable for processing and have to be amended; often resulting in expensive litigation.  If there is a significant disparity in the income of the parties, it is normally fair to have the parties divide the cost of SBP in accordance with their share of the retirement, and this is the statutory scheme. Note that SBP premium is tax free as it is deducted from gross retirement pay in arriving at “disposable retired pay”.

D. PRIVATE LIFE INSURANCE IS USED TO INSURE THE MILITARY PENSION WITHOUT UNDERSTANDING THE BENEFITS OF FORMER SPOUSE SBP.

During mediation or settlement negotiations, spousal SBP may be in place but the husband is arguing about the cost of the benefit. He suggests that private life insurance be used to insure the military pension. The cost of private insurance is less. The wife needs to understand that there are advantages to SBP such as:

NO QUALIFYING

PREMIUM REMAINS FIXED AND IS PAID UP AFTER 30 YEARS;

INFLATION PROTECTED WITH COLA

BACKED BY U.S. GOVERNMENT

Insurance premiums for a man of 60 years are often not affordable and pre-existing conditions may make one uninsurable.

E. INSURING THE MILITARY PENSION WITH SERVICEMENS’S GROUP LIFE INSURANCE (WAR INSURANCE)

Normally active duty and reserve member’s have available to them $400,000.00 of SGLI providing a death benefit of $400,000.00. However, under a United States Supreme Court case this form of “war insurance” cannot be regulated by a mere state court order. Even if the member has signed a marital settlement agreement agreeing to provide SGLI, the agreement is absolutely void and lawsuits seeking to impose a constructive trust on the insurance proceeds on a theory of fraud or negligence have routinely failed. The courts have found that Congress intended service member’s have the right, as a morale booster needed during the Vietnam war, to change beneficiaries on the battlefield irrespective of court orders entered back home. Ridgway v. Ridgway, 454 U.S. 46, 102 S. Ct. 49, 70 L. Ed. 2d 39 (1981).  Ridgway is still good law. See Dohnalik v. Somner, 467 F. 3D 488 (5th Cir. 2006), 44A Am. Jur. 2d Insurance, sec. 1879 (July 2010), 6 C.J.S. Armed Services, sec. 246, Insurance (Westlaw, 2010).

Thus the member is free to change the SGLI designation at any time, despite his agreement not to do so and a state court order. Should the member do so, and then be killed in a war zone or elsewhere, the pension is left uninsured for the former spouse. It is possible in this scenario for a new spouse to get the SBP as the surviving spouse of a soldier entitled to retirement pay who died while on active duty.

PRACTICE POINTER:

Beating Ridgeway is hard, but not impossible. Insurance designations require “testamentary capacity”. Surely it is not rationale to leave insurance proceeds to an elderly mother rather than to a minor child. If the member was, at the time, habitually drunk or suffered from some other documented incapacity, a lawsuit to void the irrational designation due to mental incapacity should be considered.

F. INSURING CHILD SUPPORT WITH SERVICEMAN’S GROUP LIFE INSURANCE

This is a common error made by practitioners in the Jacksonville, Pensacola, and Panama City areas which have large active duty military population with young families. The common scenario is that the wife is designated the custodial parent and the husband’s child support obligation is insured in the marital settlement agreement with the proceeds of SGLI. Unfortunately, after the dissolution of marriage the member changes the SGLI designation to his mother or to his girlfriend. Later, the member is killed in a car accident. The former wife applies to the insurance company for her life insurance benefits for the minor children and is advised that they are not named as the beneficiaries, despite a court order requiring this. The former wife seeks competent counsel and is advised that the state court order approving the marital settlement agreement with respect to the life insurance benefits is ineffectual.

Ridgeway strikes again. The member is free to change the beneficiary on his $400,000 SGLI policy despite a court order and marital settlement agreement that the child would be the irrevocable beneficiary of the insurance. The former wife, as next friend of the minor child, cannot impose a constructive trust on the insurance proceeds now in the hands of a paternal relative or girlfriend. Usually, the deceased member’s estate is insolvent. The unhappy former spouse may seek relief against the attorney’s malpractice carrier.

It is important to understand the distinction between a private life insurance policy, which can be regulated by the court, and a federal “war insurance” policy, which cannot be so regulated. In the case of a private policy, the minor children are considered third party beneficiaries of the marital settlement agreement and final judgment, and that enforcing these agreements are consistent with the public policy of the State of Florida in insuring that minor children are supported. Thus a constructive trust over the policy proceeds may be imposed. Lowry v. Lowry, 463 So. 2d 540 (Fla. 2 DCA 1985), Browning v. Browning, 784 So. 2d 1145 (Fla. 2 DCA 2001), Holmes v. Holmes, 463 So. 2d 578 (Fla. 1 DCA 1985).

It is true that often the soldier, sailor, or marine did not have a private life insurance policy but in that event the wife should be advised to purchase a private policy and the file well documented.  A provision using SGLI can be utilized but the order should explicitly state the limitations of the state court and require the member to file in the court file annually proof that the minor child/children are covered under the SGLI policy. Even with such language, there is an unacceptable loophole or risk that the SGLI beneficiary will be changed and that risk must fall, without ambiguity, on the client, not the attorney.

PRACTICE POINTER:

If at all possible, private life insurance should be purchased to secure child support and such policy should either be assigned to the custodial parent who should pay the premiums or, if the policy is to be owned and maintained by the non-custodial parent, the insurance company should be served with a court order naming the minor children as the irrevocable beneficiaries of the policy. The policy should also be examined to see if it excludes deaths incurred in a combat zone during time of war or conflict, or related exclusions. In such a case, dependent children still have federal dependency and indemnification benefits provided by federal law.

XXI: MILITARY MEDICAL BENEFITS:

The requirements for former spouse military medical, commissary, and exchange benefits are as follows:

20 years or more marriage;

20 years or more active military service or a combination of active military service and reserve service producing “good” years for retirement;

20 years overlap between active/reserve service and the years of marriage means;

THE NON-MILITARY SPOUSE IS A 20/20/20 spouse entitled to full medical, commissary, exchange and theater privileges for life, under certain conditions, by federal law. See 10 U.S.C.1072(2)(F); 32 CFR sec. 199.3(b).

CALCULATION- It is the date of final judgment of dissolution of marriage that determines whether or not one is a 20/20/20 former spouse.

CONDITIONS- Former military spouse has not remarried and does not have coverage under an employer sponsored plan.

20/20/15- Former spouse, under the same conditions, gets one year of medical benefits, for divorces occurring after September 30, 1988.

ACTIVE DUTY MILITARY COBRA- For a period of three years is available at a cost or around $900.00 per quarter for former spouses who have not remarried. 10 U.S.C. 1078a(b)(3)

CERTAIN FORMER SPOUSE’S AWARDED A PORTION OF THE MILITARY PENSION OR FORMER SPOUSE SURVIVOR BENEFITS:

It now appears that certain qualified former spouses who have been awarded a portion of the military retirement or have been named by court order as entitled to former spouse survivor benefit plan may be entitled to lifetime FEDERAL EMPLOYEE like medical benefits. Such benefits are not free and the cost thereof should be considered in any assessment of alimony needs. For an excellent discussion of this issue, its complexity and limitations, see ROLL CALL, Summer, 2008, Newsletter of the Military Committee, ABA Family Law Section., available on line.

PRACTICE POINTER:

*Many cases come up on the trial docket within a year or six months of the non-military spouse qualifying as a 20/20/20 spouse. It is important for the practitioner to negotiate a delay in the case of an “almost” 20/20/20 spouse or to factor in medical insurance costs in any alimony assessment.

END OF OUTLINE, MILITARY DIVORCE GUIDE FOR THE EXPERIENCED PRACTITIONER

BIOGRAPHY OF PETER CUSHING

PETER CUSHING is a graduate of Syracuse University College of Law, (cum laude). He is a member of the New York, Florida, and Hawaii bars. He served on active duty with the United States Navy and tried courts-martial cases as a prosecutor and defense counsel onboard naval ships and shore stations in Hawaii, Japan, Guam, the Philippine Islands, and throughout Europe, the United Kingdom and the Middle East between 1978 and 1984. He remained in the naval reserve as a reserve judge advocate between 1985 and 2002 performing legal assistance for active duty members of the armed forces and their dependents throughout the State of Florida attaining the rank of Captain. Peter established a law office in Orlando, Florida in 1984 and limited his practice to military family law in 1995 accepting cases throughout the State of Florida. He is board certified in marital and family law since 1994 and is a frequent lecturer and national consultant on military related family law issues.

For more information about military divorce issues, see:

Peter Cushing, The Ten Commandments of Military Divorce: Representing The Non-Military Spouse, Parts, I and II, Fla. Bar J. , July/August, 1995, Fla. Bar J., (October, 1995), Cushing, Navigating The Former Spouse Protection Act, Fla. Bar J. (December, 1997), Cushing, The New Servicemember’s Civil Relief Act, Fla. Bar Journal, (2004),Cushing, “Effects of Military Service“, Adoption, Paternity, and Other Florida Family Practice, (Tenth Ed.2010 and earlier editions since 1997); see also www.militarydivorce.net , the above references are linked to the website. Peter may be contacted at [email protected] or 407-353-3501.