The Ten Commandments of Military Divorce: Representing the Nonmilitary Spouse
By: Peter C. Cushing, Esq., Orlando, Florida
Representation of the nonmilitary spouse in a dissolution action requires specialized knowledge. Federal law and regulations frequently govern or limit the relief available in State Court. Jurisdiction, pension splits, insurance, and health benefits involve the application of complicated rules. The following suggestions seek to advance the interests of the nonmilitary spouse.
1. Thou Shalt Obtain Personal Jurisdiction
Assuming that dissolution subject matter jurisdiction exists, it is still necessary to personally serve the active duty member with a summons and petition for dissolution of marriage in order to invest the court with complete jurisdiction. If the respondent is overseas or deployed, this service can be extraordinarily difficult. It is not possible to compel military authority to serve the summons and petition on an active duty member. It is possible to request that military authority serve the active duty member, but service is allowed only with the active duty member’s consent. If the member will not consent, one solution is to have the court appoint an active duty, reserve, or even civilian natural person as an officer of the court to serve the papers. However, service aboard any ship or shore installation violates military regulations. Also, service in the territorial jurisdiction of many foreign nations may violate the Hague Convention. Pursuant to the Hague Convention, it is possible and preferable to serve the summons and petition abroad by mailing the documents to the “central authority” who will then accomplish service in accordance with the law of that jurisdiction.
Service of process on members with children who are stationed overseas is relatively easy. Federal agencies and the uniformed services have designated officials who are responsible for facilitating service of legal process, regardless of the location of the members’ duty station.
2. Thou Shalt Proceed Without Personal Jurisdiction to Obtain Child and Spousal Support
- In Rem Orders: Uniform Code of Military Justice
Despite diligent efforts, in some cases one may not be able to accomplish service by foreign authority, military authority, or court-appointed process. In that event, provided subject-matter jurisdiction and long-arm jurisdiction exist , one may proceed after publication and issuance of notice of action to obtain the appropriate in rem orders, subject to personal enforcement when the active duty member may be personally served, or against the respondent’s real property or other assets within the State specifically described in the notice. One may also serve the in rem order by certified mail on the active duty member’s commanding officer, pointing out that in the U.S. military failure to support dependents constitutes “service-discrediting” misconduct. Under military regulations, the service member must then be counseled regarding his or her obligations and informed that administrative discharge proceedings may be initiated if such service-discrediting conduct continues. · In Rem Support Orders: Involuntary Allotments Although letters to the active duty member’s commanding officer are extraordinarily effective, there is good reason to exercise restraint in taking action that could jeopardize family income and assets. In many cases, obtaining an involuntary allotment may be a better solution. The basic requirement for such an allotment is a state court support order and an arrearage equal to or exceeding the support required for a two-month period. If your client is seeking only alimony, involuntary allotment is not available. If the client needs alimony and child support, involuntary allotment is available and preferable to garnishment because the definition of “disposable earnings” includes basic pay, basic allowance for quarters, basic allowance for subsistence, sea pay, special pay, and other allowances. These allowances are not included within the definition of “remuneration for employment” utilized by the federal garnishment statute. The order is sent to the military finance center stating that the requisite arrearage exists and requesting that a “mandatory allotment” be started. The finance center notifies the member’s commander and the member concerning the request. Absent presentation of an adequate defense by the member, an involuntary allotment is started. Arrearages may be collected in a similar fashion. The maximum amount of the allotment is generally 60 percent of disposable earnings or 50 percent if the member is supporting other family members, inclusive of allowances. Utilizing involuntary allotments thus increases the net monthly support amounts received by your client, avoiding the need in many cases for the extraordinary remedy of contempt.
3. Thou Shalt Penetrate the Servicemembers Civil Relief Act
The mere mention of the “act” is enough to make most attorneys cringe. Under the act, the petitioner is often responsible for seeking the appointment of an attorney for one’s legal adversary. The act protects the service person only when active service “materially prejudices” the ability of the member to make a defense and requires a discretionary ruling on the part of the trial judge. Since the member’s leave and earnings statement and other financial information may be faxed or delivered to the court, and is a matter of public record, there would seem to be little prejudice at a temporary hearing resulting from the member’s absence. In addition, a key factor in determining prejudice is the member’s good faith, and noncompliance with agreements or orders related to family responsibilities is presumptive evidence of bad faith. Successful implementation of the act often requires volunteers to make themselves available to act as attorney ad litem for the absent service member who has not filed a written response to the action or who has demanded appointment of counsel. Since there is no basis for the attorney ad litem to demand fees directly from the member, the best approach is for the petitioner to pay the attorney ad litem and request a fee award under F.S. Ann. §61.16 (Supp. 1994), including within the request for fees the demand for reimbursement of the attorney ad litem’s fee. Such an order is enforceable by garnishment if properly worded, provided personal jurisdiction over the absent service member exists.
4, Thou Shalt Split the Military Pension
In a long-term marriage involving years of active duty service, the pension is often the major asset of the marriage. Senior enlisted personnel frequently retire in their forties after 20 years’ active service and receive a lifetime pension of one half their basic pay. Not including general or flag ranks, payments range anywhere from about $1,200 to several thousand dollars per month. Given a 40-year life expectancy after retirement, a military pension asset can be worth from $590,000 to more than $2 million, not reduced to present value and not including cost of living or inflation increases. The client is usually entitled to equitable distribution of this asset under the Former Spouse Protection Act (a/k/a Former Spouse Victim Act) and F.S. Ann. §61.076 (Supp. 1994). However, special federal jurisdictional rules apply to split a military pension. Personal jurisdiction of the service person based on residence other than by military assignment, based on domicile, or by consent is essential. Under no circumstances should a default be taken against an out-of-state active duty military member followed by entry of final judgment. Omitting the pension as an asset or erroneously distributing it could have equally disastrous results. A final judgment distributing a military pension in the case of an active duty member must certify that the Servicemembers Civil Relief Act of 2003, was complied with. Also, in order to split a military retirement pension at the source, the parties must have been married for 10 years, during which time the service member was on active duty earning retirement point credits, and this fact must be certified in the judgment or by separate documentation.
The mechanics of the pension split involve preparing the final judgment in proper form and completing DD Form 2293, February 1991, entitled “Application for Former Spouse Payments From Retired Pay,” and forwarding the documents by certified mail to Defense Finance. In the event one cannot meet the 10-year rule, it is still possible to split the pension as marital property. However, enforcement may be a problem since payments cannot be obtained directly from Defense Finance under federal law and regulations.
5. Thou Shalt Insure the Military Pension
As noted above, military pension benefits are frequently the largest asset in the military dissolution of marriage case. As the population ages, many military pensioners will die and, unless insured, valuable pension benefits for both spouses lapse. Failing to advise the client to obtain appropriate insurance is likely legal malpractice in a case involving a long-term military marriage. Oddly, there is a general reluctance on the part of the judiciary to order appropriate insurance benefits to secure pension interests even where life insurance has been canceled shortly before the initiation of divorce proceedings. Unlike life insurance to secure child support, or health insurance benefits for children, ordering life insurance to secure alimony or pension benefits is discretionary, subject to review for abuse of discretion. Therefore, the burden is on the practitioner to explain to the court the insurance benefits available, the costs, who should pay, and why insurance is considered essential in a particular case.· Private Life Policies A common occurrence is that private insurance has been maintained for many years, insuring the life of the military member and naming the spouse as beneficiary Payment of the premium annually by the beneficiary spouse may be the only way realistically to maintain the benefit. Very few clients are willing to undergo the expense, uncertainty, and bureaucratic difficulty of these procedures and the former spouse usually cannot be relied upon, even under court order, to maintain the policy. Accordingly, as a practical matter, private life policies are usually an inefficient and unreliable vehicle to secure the military pension.· Serviceman’s Group Life Insurance (SGLI) Sanctioned by federal law and regulations, SGLI typically provides $250,000 of life insurance benefits for the service person’s designated beneficiary. The service person may name his or her parents, children, spouse or former spouse, or others as beneficiaries. The cost is typically quite reasonable. Since nearly all active duty service persons carry SGLI, on the surface SGLI appears to be an ideal method of providing insurance benefits to secure at least part of the military pension or to provide for the former spouse or children of the service member.· Survivor Benefit Plan (SBP) Survivor Benefit Plan is available to active duty members. Also, every few years “open enrollment” for retired members has become available. There is an “open enrollment period commencing October 1, 2005. Divorcing parties may enter into marital settlement agreements to provide for an annuity to the surviving spouse in the event of the service member’s death. Such agreements, by federal statute, may be approved by state courts and orders may be entered sufficient to bind the service member and Defense Finance to provide the annuity. Benefits may be paid to the surviving widow or widower, surviving dependent children, former spouses, or other natural persons. Significantly, a court may order a person to elect SBP to provide an annuity to a former spouse or to both a former spouse and a child. Other than former spouse and child SBP benefits, splitting SBP among various beneficiaries is not permitted. The downside to SBP is that premiums are somewhat expensive. The SBP premium is financed automatically by both spouses in the insured retirement split situation. This is so because the SBP premium is deducted from gross retirement pay before the division of “disposable retirement pay”. Various manipulations are possible to make one side pay all or none of the premium but in most cases it seems fair simply to let the statute make the allocation.
6. Thou Shalt Enforce the SBP Award
The most likely area of legal malpractice is in the enforcement of the survivor benefit plan award. Given the complexity of the SBP statute and regulations, many SBP awards lapse and cannot be reinstated. Typically, counsel serves the final judgment of dissolution of marriage, which equitably distributes the military pension and which orders SBP coverage, on Defense Finance. Service is accomplished by certified mail, return receipt requested. Defense Finance often loses the documents until the nonmilitary spouse writes to his or her local Congressperson, who writes to Defense Finance, prompting the search for and ultimate locating of the documents. The service member may have already named the former spouse as SBP beneficiary at the time of retirement before the divorce. However, within one year of the divorce, a former spouse election must be made by the service member. Often, this is not done, despite the marital settlement agreement and final judgment. Although the final judgment is duly served by certified mail, this service is not necessarily sufficient to vest survivor benefit plan rights in the former spouse. If this situation is discovered many years later, often the ex-spouse’s only hope is that Congress passes an open enrollment period and the service member can be compelled to sign the necessary forms.
· The Deemed Election Provisions The SBP nightmare briefly described above can be largely eliminated by utilizing the “deemed election” provisions of Title 10 U.S.C. §1448. The statute provides that if the service member agrees to make the SBP election and the court approves the agreement, or if the court has ordered the SBP election to be made and the service member fails to do so, then the service member shall be deemed to have made such an election if the secretary concerned receives a written request, in such manner as the secretary shall prescribe, from the former spouse, requesting that such an election be deemed to have been made, and receives a copy of the court order requiring same. Merely serving a certified copy of the final judgment and marital settlement agreement by certified mail on Defense Finance is not sufficient. The order should be served with a letter specifically requesting that the service member’s former spouse be deemed to have made the election, by certified mail, along with a request for any appropriate forms required by that office. Once the final judgment is served with the request to split retirement, and the deemed election letter, by certified mail, the valuable military pension benefits are secured by a federal insurance plan. SBP “deemed election” letters must be served on Defense Finance and Accounting Service, U.S. Military Annuitant Pay, P.O. Box 7131, London, Kentucky, 40742-7131.
· Advantages of Survivor Benefit Plan 1) Income for Life — When the retiree dies, the former spouse receives benefits for life unless he or she remarries before age 55, which terminates benefits. 2) Available without Qualifying — Survivor benefit plan is available even if the military member could not qualify, because of health reasons, for commercial insurance. 3) Tax Free — Deductions from retired pay to fund the survivor benefit plan are from gross retirement pay. Thus, they are tax free and the premiums are paid by the retiree and former spouse who receives a pension distribution. 4) Guaranteed — Survivor benefit plan cannot be terminated by the retiree and does not lapse as commercial policies do. 5) Cost of Living Adjustments — Survivor benefit plan benefits are increased with the cost of living.· Disadvantages of Survivor Benefit Plan 1) Inflexibility — Survivor benefit plan, once chosen, cannot be canceled except by death of the eligible spouse and a few other exceptions. 2) Premiums Are Expensive and May Increase — Although both spouses usually pay and the premiums are tax exempt, they are expensive and do go up. 3) No Cash Value — Survivor benefit plan does not have a cash value buildup. If there is no payout of benefits because the former spouse dies first, the premiums cannot be returned. 4) Veteran’s Administration or Social Security Reduction — A complex set of rules may reduce survivor benefit plan benefits by up to 40 percent when the beneficiary reaches age 62 or should the beneficiary receive payments from the VA related to the retiree’s death.
7. Thou Shalt Be Aware of the Doctrine of Federal Preemption
Although many service members have signed marital settlement agreements to maintain their former spouse as the irrevocable beneficiary of SGLI and such agreements have routinely been approved by the courts in final judgments, the order is absolutely void and unenforceable. The U.S. Supreme Court in Ridgway v. Ridgway, 454 U.S. 46 (1981), in a 5 to 4 decision, held that the area was preempted by federal law and the serviceman was free to name his new spouse or companion the beneficiary of SGLI proceeds, despite a valid contract, approved by the court, to designate his wife and children. Later lawsuits predicated on fraud, breach of trust, or contract violation have met with little success in both state and federal court. After the death of the service member in such a situation, suit against the estate is possible, but the estate may be insolvent. The remedy of contempt during the service member’s life is not available, since the service member has a statutory right to designate whomever he or she wishes and such right cannot be infringed upon by a state family court judge. Attempting to obtain private insurance involves the problems earlier discussed. All too frequently, the practitioner obtains military pension benefits for the spouse or obtains court-ordered SGLI benefits, but the beneficiary designation is secretly changed or the policy lapses before the death of the service member. The client’s next remedy may be suit against the attorney, perhaps many years later.
8. Thou Shalt Plan for Early Retirement, Defense Draw Down, Medical Retirement or Merger with Other Benefits
When representing the non-active duty spouse, an attorney must be aware that, in the past, there were cutbacks in all branches of the U.S. military are resulting in “early outs.” Often, the service member received a separation benefit referred to as voluntary separation incentive (VSI) or special separation benefit (SSB). This benefit is subject to equitable distribution provided the final judgment specifically distributes the benefit or retains jurisdiction to do so. In the event that the service member may come into possession of such funds, the judgment should require the appropriate portion of the proceeds to be held in trust for the nonmilitary spouse. Another common scenario involves the medical disability retirement of the active duty member. Medical disability payments are not subject to equitable distribution under federal law. If there is even a remote possibility that the service member may medically retire, jurisdiction should be reserved in the final judgment to award permanent alimony as medical benefits may be considered a stream of income from which, indirectly, alimony may be paid to a needy former spouse. Without such a reservation of jurisdiction, a military retirement split may be defeated by conversion of the property asset to a disability benefit. Recent legislation providing for “concurrent receipt” of both disability benefits and regular retirement pay for veteran’s with more than 50% service connected disability has partially solved the problem of conversion of the regular military pension into a disability pension. Finally, be aware that the retiring military member may, under a complex set of federal regulations, merge his or her military retirement benefits with another federal retirement plan. Careful drafting of the marital settlement agreement and final judgment is essential to preserve the nonmilitary spouse’s interest in the transmuted asset.
9. Thou Shalt Obtain and Collect Your Attorneys’ Fees
In representing the nonmilitary spouse, it is often necessary to look to the active duty member to pay at least some of the attorneys’ fees incurred. Also, given the substantial responsibility taken on by the attorney seeking to obtain insurance and pension benefits for the client, it is important that the attorney understand how and if he or she will be paid. The basic requirement to obtain a fee award is a matter of state law requiring a significant disparity in income between husband and wife. Without such a disparity, look to your client for payment. Assuming sufficient financial disparity does exist, the issue is one of enforcement. To garnish an attorney fee award, the order must meet the requirements of 42 U.S.C. §659 and be legal process brought for the enforcement of a legal obligation to provide child support or make alimony payments. Further, the legal process must expressly provide for inclusion of attorneys’ fees and/or court costs as (rather than in addition to) child support and/or alimony payments. Last, the order must be within the authority of the court and it will be deemed to be within the court’s authority if the order is not in violation of or inconsistent with state or local law, even if state or local law does not expressly provide for such an award. Failure to include the “magic words” will result in Defense Finance returning the order with a polite letter declining to honor the attorneys’ fees garnishment writ. Correct drafting results in enforceability of the award regardless of the geographic location of the obligor.
10. Thou Shalt Be Aware of Federal Health Benefits
It is frequently in the best interests of the nonmilitary spouse to delay entry of the final judgment of dissolution of marriage until either the requirements of the 20/20/20 or the 20/20/15 rules can be met. Vesting of health benefits or health benefits and commissary, theater, and exchange benefits are important material and psychological benefits to a client. The 20/20/20 rule applies if the marriage has lasted 20 years and the military member has at least 20 years of creditable service toward retirement, and at least 20 years of this creditable military service was performed during the marriage. “Good years” earned by drilling reservists are counted in application of the 20/20/20 rule. The former spouse meeting these requirements is entitled to commissary, theater, exchange, and medical benefits until remarriage. Medical benefits are not granted if the former spouse is covered by an employer-sponsored health plan. All benefits terminate upon remarriage. If the subsequent marriage ends in divorce or death, the former spouse may again be eligible for reinstatement of benefits. The 20/20/15 rule applies if marriage has lasted at least 20 years and the military member had at least 20 years of creditable service performed toward retirement, and at least 15 years of this creditable military service was performed during the marriage. The unremarried former spouse meeting these requirements is entitled to medical and dental benefits (including TRICARE); if the divorce was entered on or after September 30, 1988, the benefits last for a period of one year. In both the 20/20/20 and 20/20/15 situations, substantiating documents and information to support an application for a uniformed services identification and privilege card (DD1773) must be submitted. The Military COBRA Plan — Effective October 1, 1994, divorced spouses of service members will be eligible for three years of TRICARE-type coverage if they have not remarried and do not fall within either the 20/20/20 or 20/20/15 rule discussed above. The statute requires that the services provide appropriate notification and a 60-day election period to former spouses. A person receiving continued health care coverage is required to pay into a military health care account the necessary premiums for the 36 months of available coverage. Responsibility for premium payments should be negotiated or ordered in cases that fall within the rule.
These suggestions were written with the interests of the nonmilitary spouse in mind. Compelling arguments can be made for a different approach in the pension split area and different tactical considerations when representing the active-duty or retired member. Controversy surrounding the interests of the nonmilitary spouse and the active duty or retired spouse continues in Congress.
Peter Cushing is a Board Certified Marital and Family Attorney and a retired Captain, Judge Advocate General’s Corps, U.S. Naval Reserve. A longer version of this article previously appeared in The Florida Bar Journal in Two Parts in 1995, with citations.