The Top 15 Florida Military Divorce Mistakes In 15 Minutes
Peter Cushing, Esq., Orlando, Florida
(Presented at the 2008 Family Law Board Certification Review Course Sponsored By The Florida Bar, Orlando, Florida)
I. Mistake Number #1-
I FORGOT HE/SHE WAS ON ACTIVE DUTY
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 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).
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. 50 U.S.C. Appx. 521(g)(1). 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. Obviously the attorney who represented the plaintiff in such a matter was not familiar with the Act.
II. Mistake Number #2-
I FORGOT TO PLEAD LONG-ARM JURISDICTION AND SERVED RESPONDENT OUT OF STATE
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:
(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 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).
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).
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).
However, 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).
WHAT THE HECK IS THE HAGUE CONVENTION?
Attempting to by-pass the Hague Convention with respect to service of process outside of the United States constitutes mistake #3. 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 FS 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.
Mistake #4- FORGETTING TO DISTRIBUTE 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.
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.
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.
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?
In any event, client will be very unhappy with all the fees spent.
Mistake Number #8-
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
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.
Mistake number #9
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.
Mistake Number #10
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 (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.
Mistake Number #11
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.
Mistake #12 and #14
YOU FORGOT TO INSURE THE PENSION AND MEMBER DIES OR YOU REMEMBERED TO INSURE THE PENSION WITH SBP BUT FAILED 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 A “DEEMED ELECTION LETTER 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” letter 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.
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. Wise v. Wise, 768 So. 2d 1076 (Fla. 1 DCA, 2000). This would allow the court to actually revisit the equitable distribution scheme and “reconfigure” it to compensate the 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.
Mistake Number #13
YOU REMEMBER TO INSURE THE PENSION BUT USE 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. Ridgeway 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, Vol. 32 No. 48, FLR (5th Cir. 2006).
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.
Mistake #15- 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)
*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.
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, Effects of Military Service, Adoption, Paternity, and Other Florida Family Practice, (Seventh Ed.2006 and earlier editions); see also www.militarydivorce.net with links to references above.
TABLE OF CONTENTS
1. I FORGOT HE WAS ON ACTIVE DUTY.
2. I FORGOT TO PLEAD LONG-ARM JURISDICTION.
3. WHAT IS THE HAGUE CONVENTION?
4. I FORGOT TO DISTRIBUTE THE MILITARY PENSION.
5. MILITARY PENSION DISTRIBUTED WITH AN UNQUALIFIED ORDER.
6. FAILURE TO INCLUDE AN INDEMNIFICATION PROVISION.
7. TAKING A DEFAULT AGAINST A NON-RESIDENT AND DISTRIBUTING PENSION.
8. USING THE WRONG COVERTURE FORMULA.
9. USING THE WRONG COVERTURE FORMULA IN A RESERVE PENSION CASE.
10. OPTING FOR IMMEDIATE OFFSET IN AN ASSET CASE.
11. FAILING TO CONSIDER PENSION DEFENSES.
12. FAILING TO INSURE THE MILITARY PENSION.
13. INSURING THE PENSION USING SGLI.
14. FAILING TO PERFECT SURVIVOR BENEFIT PLAN.
15. NOT UNDERSTANDING MILITARY MEDICAL BENEFITS.