25 Years Of Practice And 25 Florida Military Divorce Mistakes Summarized In 25 Minutes
Peter Cushing, Esq., Orlando, Florida
TABLE OF CONTENTS
1. FAILURE TO DETERMINE THE ACTIVE MILITARY STATUS OF THE PARTIES.
2. FAILURE TO PIERCE THE SERVICEMEMBER’S CIVIL RELIEF ACT (Amended 2003) IN THE APPROPRIATE CASE.
3. FAILURE TO PLEAD LONG-ARM JURISDICTION FACTS WHEN THE RESPONDENT IS SERVED WITH PROCESS OUTSIDE OF THE STATE OF FLORIDA.
4. FAILURE TO UNDERSTAND THE CIRCUMSTANCES WHEREIN A FLORIDA COURT CAN EXERCISE PERSONAL JURISDICTION OVER AN OUT OF STATE RESPONDENT.
5. FAILURE TO REALIZE THAT SERVICE OF PROCESS IN THE STATE OF FLORIDA CONFERS PERSONAL JURISDICTION.
6. WHEN REPRESENTING THE RESPONDENT, FAILURE TO BE AWARE OF FLORIDA’S “LIMITED IMMUNITY” VISITATION LAW.
7. FAILURE TO EFFECT SERVICE OF PROCESS ON THE ACTIVE DUTY MILITARY MEMBER IN ACCORDANCE WITH MILITARY REGULATIONS.
8. NOT BEING AWARE OF THE HAGUE CONVENTION WITH RESPECT TO SERVICE OF PROCESS ABROAD.
9. FORGETTING TO DISTRIBUTE THE MILITARY PENSION IN A LONG TERM MARRIAGE OR PICKING THE WRONG DATE TO VALUE THE SAME.
10. DISTRIBUTING THE MILITARY PENSION BUT USING THE WRONG COVERTURE FORMULA OR DRAFTING AN UNQUALIFIED ORDER.
11. NOT BEING FAMILIAR WITH DEPARTMENT OF DEFENSE REGULATIONS AFFECTING EQUITABLE DISTRIBUTION AND SUPPORT ORDERS.
12. FAILURE TO AWARD ALIMONY IN A VA DISABILITY CASE WHERE MEMBER RETIRES OVERSEAS, OUT OF REACH.
13. EQUITABLY DISTRIBUTING A MILITARY PENSION ON A DEFAULT WHERE THE MEMBER IS NOT A RESIDENT OF THE STATE OF FLORIDA.
14. USING THE WRONG COVERATURE FRACTION TO DIVIDE AN ACTIVE DUTY MILITARY PENSION.
15. USING THE WRONG COVERATURE FRACTION IN A RESERVE PENSION CASE.
16. GOING WITH “IMMEDIATE OFFSET” WHEREIN MEMBER KEEPS THE PENSION AND WIFE GETS MOST OTHER ASSETS.
17. WHEN REPRESENTING THE MILITARY MEMBER FAILING TO CONSIDER LEGITIMATE PENSION DEFENSES.
18. FAILING TO INSURE THE MILITARY PENSION OR FAILING TO PERFECT SBP.
19. FAILING TO UNDERSTAND THE DISTINCTION BETWEEN SPOUSE SBP AND FORMER SPOUSE SBP.
20. DRAFTING A “NON-QUALIFIED” SBP ORDER WHICH DOES NOT IMPOSE A DEFINITE OBLIGATION ON THE MEMBER TO ELECT FORMER SPOUSE SBP.
21. USING PRIVATE LIFE INSURANCE TO INSURE THE MILITARY PENSION IN A LONG-TERM MARRIAGE WITHOUT UNDERSTANDING THE ADVANTAGES OF SBP.
22. INSURING THE MILITARY PENSION USING SGLI WHICH CANNOT BE REGULATED BY A STATE COURT.
23. INSURING CHILD SUPPORT WITH SGLI WHICH CANNOT BE REGULATED BY AS STATE COURT.
24. NOT UNDERSTANDING MILITARY MEDICAL BENEFITS.
25. ACCEPTING A MILITARY RELATED DIVORCE CASE IN A LONG-TERM MARRIAGE INVOLVING PENSION, SPB AND ASSETS, WITH ATTENDING THE 2012 BOARD CERTIFICATION COURSE OR REVIEWING THE MATERIALS POSTED AT www.militarydivorce.net
I. FAILURE TO DETERMINE THE ACTIVE MILITARY STATUS OF THE PARTIES
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.
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.
For adoption practitioners, see D and L.P. v. C.L.G. and A.R.L. 37 So. 3d 897 (Fla. 1 DCA 2010) wherein the court, in dicta found that the tolling provisions of the Servicemember’s Civil Relief Act are unconditional in the sense that they apply wherever the service member is deployed and regardless of his knowledge of the proceedings; once military service is shown, tolling is automatic. Thus the statute requiring an unmarried biological father to file a notarized claim of paternity in order to preserve the right to notice and consent to an adoption may be invalid against an active duty service member. Servicemember’s Civil Relief Act sec. 206(a), 50 App. U.S.C.A. sec. 526(a).
PRACTICE POINTER:
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.
II. FAILURE TO PIERCE THE SERVICEMEMBER’S CIVIL RELIEF ACT IN THE APPROPRIATE CASE
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). 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, the service member may very likely be entitled to a delay if he/she has filed a proper motion supported by affidavits showing material effect 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 affect 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 member’s 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 NUMBER TWO:
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, No. CAF 09-00537 (NY App. Div. 4th Dept. 2009). To my knowledge, there is no Florida case on point.
III. FAILURE TO PLEAD LONG-ARM JURISDICTION WHEN THE RESPONDENT IS PERSONALLY SERVED OUT OF THE STATE OF FLORIDA
This 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).
PRACTICE POINTER:
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).
PRACTICE POINTER #2:
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.
IV. FAILURE TO UNDERSTAND THE CIRCUMSTANCES IN WHICH A FLORIDA COURT CAN EXERCISE JURISDICTION OVER AN OUT OF STATE RESPONDENT
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.
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: 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 proximately preceding the filing of the action?
V. FAILURE TO UNDERSTAND THAT SERVICE OF PROCESS IN THE STATE OF FLORDIA IS SUFFICIENT TO CONFER PERSONAL JURISDICTION
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). However, it may not be sufficient to vest 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.
VI. WHEN REPRESENTING THE NON-CUSTODIAL PARENT, FAILURE TO BE AWARE OF THE “LIMITED IMMUNITY” VISITATION LAW
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 that the non-resident parent can 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.
VII. FAILURE TO EFFECT 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:
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:
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.
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).
SERVICE OF PROCESS OUTSIDE THE UNITED STATES
Process of State Courts-
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.
VIII. NOT BEING FAMILER WITH 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 constitutes mistake #7. In theory, an international incident may result.
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.
IX. FORGETTING TO DISTRIBUTE THE MILITARY PENSION OR PICKING THE WRONG DATE TO VALUE THE MILITARY PENSION
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 $1,566.00 per month in taxable retirement benefits, and an 0-6 (Captain, Colonel) will receive about $6,099.00 per month. 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 $329,000.00 and $1,280,790.00, 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.
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.
PRACTICE POINTER: VALUATION:
For purposes of valuation, 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. Thus all retirement points earned on a military pension after the date of filing are non-marital. Willman v. Willman, 944 So.2d 1151 (Fla. 1 DCA 2006). In cases where the member is still on active duty, the pension value should be limited to the rank and years of service of the member as of the date of filing. Lawrence, infra.
X. DISTRIBUTING THE MILITARY PENSION BUT WITH AN UNQUALIFIED ORDER
This is a very common error that can be easily avoided. What one must remember is to distribute the pension, if possible with a FIXED DOLLAR AMOUNT OR AS A PERCENTAGE. 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 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?
HERE ARE THE MAGIC WORDS:
“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.
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. Seven years has passed since the entry of the final judgment.
PRACTICE POINTER; SAMPLE QUALIFIED MILITARY ORDER
IN THE CIRCUIT COURT OF THE STATE OF FLORIDA, COUNTY OF ORANGE
CASE NO: 2010-0000
IN RE: THE MARRIAGE OF:
JOHN JONES,
And
MARY JONES
———————————————/
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, 2010.
———————————————
CIRCUIT JUDGE
*Complex hypothetical formulas omitted from this sample order.
XI. NOT BEING FAMILIER WITH DEPARTMENT OF DEFENSE REGULATIONS AFFECTING EQUITABLE DISTRIBUTION AND SUPPORT ORDERS
There have been issued updated regulations significantly affecting former spouse payments from military retired pay and new forms issued. See Volume 7B, Chapter 29, DoD Financial Management Regulations, February, 2009.
BRIEF 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.
XII. 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 a 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.
XIII. TAKING A DEFAULT AND 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 driver’s 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: However, 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.
XIV. USING THE WRONG COVERTURE FRACTION 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
However, 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 occur 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.
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.
XV. USING THE WRONG COVERTURE FRACTION IN A RESERVE PENSION DIVISION
This is another common error. There are many Army, Navy, Marine Corps, 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.
XVI. USING IMMEDIATE OFFSET IN AN ASSET CASE; THAT IS GIVING ONE PARTY THE HOUSE AND 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 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 recent 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.
XVII.WHEN REPRESENTING THE MILITARY MEMBER, FAILING TO CONSIDER PENSION DEFENSES
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.
XVIII. FORGETTING TO INSURE THE MILITARY PENSION AND MEMBER DIES OR INSURING THE PENSION WITH SBP BUT FAILING TO PERFECT IT
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 you 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 often “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.
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.
XIX. IN A LONG TERM MARRIAGE, YOUR CLIENT, SPOUSE OF THE MEMBER HAS SBP BUT IN THE DIVORCE CASE SBP IS NOT CONVERTED TO “IRREVOKABLE FORMER SPOUSE SBP AT THE MAXIMUM RATE.
This is a common mistake. 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.
XX. 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.
XXI. 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 is often not affordable and pre-existing conditions may make one uninsurable.
XXII. 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. (The “greedy grandma” and the retired Navy JAG mediator war story)
XXIII. 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
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.
XXIV. NOT UNDERSTANDING THE NATURE OF MILITARY MEDICAL BENEFITS AND CLOSING THE DOOR ON AN ALMOST 20/20/20 SPOUSE
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.
XXV. ACCEPTING A MILITARY RELATED DISSOLUTION OF MARRIAGE CASE IN A LONG TERM MARRIAGE WITH PENSION, SBP, SUPPORT AND CHILD ISSUES WITHOUT ATTENDING THE 2011 MARITAL AND FAMILY LAW BOARD CERTIFCATION COURSE OR REVIEWING THE MATERIALS.
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, (Ninth Ed.2008 and earlier editions); see also www.militarydivorce.net, the above references are linked to the website.
APPENDIX OF FORMS
1.Excerpt Navy Manuel of the Judge Advocate General, section 0616.
2. 32 CFR Ch. V (2007).
3. U.S. Gov. Accounting Office, Matter of Colonel William F. Magill; FSSBP.
4. Claims Appeals Board Decision, July, 2000 #99102801, Deemed Election, SBP.
5. Comptroller General Decision in case of Sgt. Weldon C. Sikes, USAF, SBP.
6. DD Form 2656-10 JUNE 2008, SBP DEEMED ELECTION.
7. 42 U.S. Code, section 659, child support, alimony, attorney fees.
8.Excerpt, JAGMAN, Authority of Armed Forces Personnel To Perform Notarial Acts With
Notarial Formats.
9.Florida Statutes, 695.031; Affidavits and acknowledgments by members of the armed forces
and their spouses.
10. Uniform Code of Military Justice, Article 136, Authority To Administer Oaths and Act As
Notary.
11. DD Form 2293, Feb. 2008, Application For Former Spouse Payments From Retired Pay