I recently presented “Military Divorce: The Basics, Perils, and Pitfalls” for National Business Institute, which you can now watch OnDemand!
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O, what a tangled web we weave when first we practice to deceive.
– Sir Walter Scott
Jamie Snellings may have thought she could get away with it. She was caught with her hand in the cookie jar… and an invisible cookie jar, at that.
After the 2014 filing for divorce in Hawai’i, she and her husband, Jason Snellings, filed their mandatory disclosure forms with information on their assets and accounts. Then Jason found out that Jamie had moved $65,000 to a new account that she had not disclosed – an invisible account – so he filed for a financial restraining order. Jamie later said, “I wanted the court case to be done and… was scared over the threat of sanctions,” and so she told her lawyer to settle the matter quickly with a consent order.
The attorneys quickly arrived at a stipulated divorce decree, and the parties signed the typed order. It covered divorce and custody, with Jason getting primary custody of the children. The judge orally approved the typed settlement and granted the divorce.
The attorneys started preparing the full and final order, but then Jamie’s attorney wrote to the court with objections. The letter said that Jason had not disclosed to Jamie his impending deployment until the day after the June 3, 2015 hearing on the stipulated divorce decree, “when he also informed Jamie that their two children would live with his parents in Virginia as part of a family care plan he had submitted to his military command. Jamie requested a hearing before the family court.” Snellings v. Snellings, NO. CAAP-16-0000704, 2020 Haw. App. LEXIS 77 (Haw. Ct. App., Feb. 28, 2020) at *3-4.
The trial judge was clearly upset, stating at the initial hearing:
| The reason we’re here today is . . . [Jason], you are currently . . . on deployment with the military pursuant to your service and that allegedly you knew about that well in advance of the proceedings in June, but for reasons that I think are manifestly obvious you decided to not reveal that to [Jamie]. [Jamie]’s claim is that that was a material misrepresentation . . . and it would have affected the negotiations between the parties and maybe come up with a different — a different result. And that’s what’s before me. |
Id. at *5. It turned out that Jason had taken the children from Hawai’i to Virginia to live with his parents.
The court ultimately signed the tendered settlement, since it recited accurately the terms upon which the parties had agreed previously. While stating that the conduct didn’t appear to require the filing of a report to the Office of Disciplinary County of the bar, the court decided to impose $5,000 in sanctions – attorney’s fees and costs – on Jason, and it demanded a detailed affidavit from Jamie’s attorney.
Jamie then filed a motion to vacate or modify portions of the settlement, sought modification of the custody terms, and asked the court to enforce a prior order requiring Jason to transfer a vehicle to her. The response from Jason was a motion to dismiss and a request for a stay of proceedings under the Servicemembers Civil Relief Act, 50 U.S.C. § 3932. The court denied the stay request and ordered the children to be returned to Hawai’i, to be placed in Jamie’s sole custody until Jason returned from deployment. Ultimately the court set aside major portions of the stipulated divorce decree on the basis of fraud. It awarded an additional $12,000 to Jamie in attorney’s fees and costs.
Much would be lost in the exploration of this case if the court’s statements in open court were omitted. A clear sense of why the court was disturbed by Jason’s conduct and where the court was headed can be gleaned from the following remarks to Jason’s attorney:
| [F]rankly, the Court has very little trust in terms of your client’s actions in this case thus far…. What the Court is concerned about are the allegations that a fraud was perpetrated on the Court…. That’s what the Court is concerned about, that information pertinent to settlement negotiations and relevant to settlement negotiations was intentionally withheld. [M]y understanding of the case, having reviewed the motion, is that the essence of the fraud claim is that [Jason’s] deployment was not disclosed [to Jamie] prior to the time the agreement [for the stipulated divorce decree] was reached…. The intention was to withhold information to get the agreement he wanted is what it’s — it sounds like you’re telling me.
[JASON’S COUNSEL]: No, I don’t believe that’s the case. THE COURT: It may have been because he wanted to ensure his children were safe and protected and all of that stuff, but at the heart of it, it sounds like he withheld information because he felt that would benefit his position. |
Id. at *9-11.
The facts about deployment and the settlement were revealed out in the Court of Appeals decision. The Court noted that:
In affirming the trial court’s rulings on attorney’s fees and costs, the Court of Appeals noted the following specific findings in the trial court’s order regarding Jason’s conduct:
| [Jason’s] TAD orders and imminent departure from Hawai’i were material facts that should have been disclosed to [Jamie] and her counsel prior to June 3, 2015. [Jason] did not disclose his TAD orders to [Jamie] until June 4, 2015. [Jason] knowingly and intentionally failed to disclose [to Jamie] his TAD orders and his plans to send the children to Virginia… until June 4, 2015 to induce her to agree to the settlement terms that he wanted. |
Id. at *25. The Court upheld the trial court’s other orders in all respects.
The Snellings case contains several lessons for the family law practitioner and the client. The pointers are not confined simply to cases involving custody and a military family.
“Clean hands” is the first lesson. Be “clean” with the opposing party and the court. Be candid when there are issues of substance which are being overlooked and which could lead to a different result, whether in the courtroom (in a contested case) or in the conference room. Even when the case is being settled “on the courthouse steps,” remember that a lawyer’s duty, as an officer of the court, includes candor to the tribunal. This is not a game of “hide the ball.” A family law matter in court is something that will affect the lives of the parties and the children, perhaps for a long time.
The next lesson involves an unappealed issue, the denial of Jason’s motion for a stay of proceedings under the SCRA, the Servicemembers Civil Relief Act, 50 U.S.C. § 3932. Ordinarily such a motion is granted automatically when the movant sets out the four essential elements of a request: a) a statement as to how his military duties affect his ability to appear, b) a statement as to when he will be available, c) a statement from his commanding officer that the servicemember’s military duties prevent his appearance, and d) the commander’s statement that military leave is not authorized. While the matter did not reach the Court of Appeals, an educated guess is that the denial was based on Jason’s conduct. When a party applying for a stay of proceedings has acted inequitably, most courts will refuse to consider the stay request based on the doctrine of “the sword and the shield.” This doctrine states that the SCRA is intended to be used as a shield to protect the rights of the servicemember, not as a sword to defeat the rights of others. “Fair play” is the key to successful use of the SCRA in slowing down civil proceedings. Bad actors may get bad treatment in court.
A third lesson is: “Good lawyers know the law, but great lawyers know the judge.” Listen to the judge. If there are comments from the bench that affect your case, pay heed and try to follow where the court is leading. In this case the court on numerous occasions pointed out its concerns about the issues of truth, credibility, fraud and the concealment of material facts in order to gain a tactical advantage. These statements are like red flags before a hurricane – heed them and act accordingly. One who doesn’t will often “reap the whirlwind.”
Finally, a lesson which Jason should have been given early in the case is “When you’re in a hole, stop digging.” Disregarding the substantial claims as to his misconduct, Jason kept on filing motions and resisting the court’s clear concerns about his deceptions. Counsel has a duty to warn the intransigent client of the likely consequences of his actions. In the appropriate case, counsel should withdraw when his or her client refuses to bring his conduct into compliance with the court’s rulings and concerns. It was clear from the start how the judge was leaning, and the court’s remarks left little doubt that Jason had “gamed the system” in gaining a settlement without revealing his position. In effect, Jason declared “I won” in a card game and collected all the poker chips on the table without showing his hand. The displeasure of the trial judge and the Court of Appeals regarding such self-dealing is obvious.
* * *
–Mark Sullivan
A short look at Child Custody Relocation in North CarolinaWe are often asked how relocation works in a custody situation, when a parent can relocate, and other relocation related questions. The question is not as simple as it may seem at first blush. There is no specific situation where a parent can relocate every time, or under which a parent will always obtain or maintain primary custody in relocation. So, the question remains, what should a parent consider and how does a parent know when he or she can relocate (or when the other parent would be allowed to relocate)?
The law in North Carolina has long been that the welfare of the child will be the court’s primary consideration. The Shepherd case says that the child’s best interests are the “polar star” to guide the court in any custody determination. See Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968).
What are in the child’s best interests? Divorcing parents can certainly disagree over what ‘best’ actually is. Generally speaking, the child’s best interest represent an open door – any witness, communication, testimony, document, expert opinion, or items relevant to what is good, bad, better, or worse for the child or children can be considered. What is a parent to do when faced with a relocation? Case law goes on to provide further guidance. In evaluating a proposed relocation in a child custody case, the court should consider a number of factors, including:
See Evans v. Evans, 138 N.C. App. 135, 142, 530 S.E.2d 576, 580 (2000) (quoting Ramirez-Barker v. Barker, 107 N.C. App. 71, 80, 418 S.E.2d 675, 680 (1992), disapproved of on other grounds by Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998)); Miller v. Miller, 241 N.C. App. 656, 775 S.E.2d 695 (2015).
It is important to note that the court can decide how much weight it will assign to each factor, and may or may not be swayed by any factor or set of factors. And the court can consider any relevant information or evidence, even if it is not on the above list, if it relates to the child’s welfare.
In North Carolina District Court (where child custody matters should be heard), the judge has broad discretion in a custody case. The Judge has the benefit of seeing the parties in person, hearing witnesses, receiving and reviewing evidence, and hearing the arguments of counsel for each party. Our experience has shown that the court will use this discretion to look at the case that is presented through the aforementioned lens of “child welfare” or “best interests of the child.”
For better or worse, it all depends on the facts and circumstances of your particular case. The court should apply the above factors, and decide what is in the child’s best interests based upon the evidence and arguments presented. There are many factors to be considered in addition to the factors listed above. A short list would include job opportunities, cost of living, opportunities in the new community, taxes, family support available in each community, and more.
Call a lawyer who is experienced in family law and relocation cases. Depending on the situation, an ex parte emergency custody request may be available to you (or the other side!). While not universally true, a relocation case is much more likely to end up in court because there are only two choices – the two places involved. This is a forced situation where one parent must “win” on the location issue. It requires a skilled professional to make the best possible argument for why the parent/child relocation should be granted or denied.
In addition to filing a lawsuit, there are many strategies which can be considered and employed. Often, we will associate with local co-counsel in the area of relocation to determine the odds of improving one’s custodial position in that jurisdiction. We can consult with professionals, such as forensic psychologists, to assess the case and provide expert testimony. Relocation requires diligent work and attention, and is often complex litigation. You need to formulate a plan with a qualified professional as soon as you can. If you received a court ruling that you consider to be unfavorable, and are still within the appropriate timeframe, you may consider appealing the court’s ruling.
First, it is always best to plan for long distances in any custody agreement or order entered by the Judge. We frequently recommend having essentially two custody arrangements: i) if the parties live within a certain mileage radius; and ii) if they live outside of that same radius. This can assist both the servicemember and the spouse by preventing them from having to run to court to modify existing custody arrangements every time there is a new permanent change of station (PCS) or move.
One must bear in mind that the law clearly allows for consideration of activities and conduct in a custody case. This is important when the actions of a parent are as a result of military orders, as opposed to a personal choice to move or relocate.
Modification of existing custody determinations can also be very important to the military family with the somewhat regular relocation of military personnel every three or four years.
For more on this issue, see The Military Divorce Handbook, (Am. Bar Assn., 3rd Ed. 2019) and the other resources available online written by the principal of our firm, Mark E. Sullivan.
Kris Hilscher practices family law in Raleigh, North Carolina. He works on family law cases, and works with attorneys nationwide as a consultant on military divorce issues in drafting military pension division orders. He can be reached at 919-832-8507 and at law@ncfamilylaw.com.
*Mr. Sullivan is a retired Army Reserve JAG colonel. He practices family law in Raleigh, North Carolina and is the author of The Military Divorce Handbook (Am. Bar Assn., 3rd Ed. 2019) and many internet resources on military family law issues. A Fellow of the American Academy of Matrimonial Lawyers, Mr. Sullivan has been a board-certified specialist in family law since 1989. He works with attorneys nationwide as a consultant on military divorce issues in drafting military pension division orders. He can be reached at 919-832-8507 and at law@ncfamilylaw.com.
From time to time, our office gets inquiries by phone or e-mail regarding how to estimate the military retired pay of a member of the uniformed services. This term means the “armed forces,” that is, the Army, Navy, Air Force, Marine Corps, and Coast Guard, and also the commissioned corps of the Public Health Service (PHS) and the National Oceanic and Atmospheric Administration (NOAA). The rules for calculating the retired pay of the active-duty “member” one of these service components, technically called “Regular Retirement” pay, are set out in 10 U.S.C. § 1407 and 1409 for the armed services, and at equivalent sections of the U.S. Code for PHS and NOAA officers. Below is a simplified explanation of the rules for calculation.
The basic formula for determining one’s retired pay is Retired Pay Base times Retired Pay Multiplier, or RPB X RPM. This can be illustrated as:
The usual percentage is 2.5%, but it’s 2.0% when a) the servicemember elected to receive a mid-career cash bonus known as CSB/Redux, or when b) the member is in the Blended Retirement System.
“High-3 Pay” is the average of the highest three years (not necessarily continuous) of base pay for a member, expressed on a monthly basis.
The Defense Finance and Accounting Service (DFAS) is the pay center for the Army, Navy, Air Force and Marine Corps. The Department of Defense regulation governing the Privacy Program, DoD 5400.11-R, states that the Defense Department will release the following information regarding a servicemember: date of rank, gross salary, length of military service and Basic Pay Entry Date. Para. C4.2.2.5.2.1, DoD 5400.11-R (May 14, 2007). Other items may also be disclosed.
“Years of service” can be determined by asking Major Jane Doe, if she is your client. Otherwise the figure can be determined by review of her LES (look at the “Pay Date” or “Pay Entry Base Date” as well as the DIEMS, or Date Initially Entered Military Service). The LES may be provided voluntarily by Jane or her attorney, or it may be obtained otherwise through discovery. This information is also available through a request pursuant to DoD 5400.11-R, as noted above. If you know Jane’s pay grade[2] and years of service, you can determine her present base pay by using the pay tables at the DFAS website, https://www.dfas.mil > Military Members.
Pay grade – not rank – is what’s needed for the pay tables. Rank can be confusing: a master sergeant in the Air Force is pay grade E-7, but it’s E-8 in the Army; a Navy captain is pay grade O-6, but a Marine Corps captain is pay grade O-3!
Let’s follow up on the calculations for Major Jane Doe, with the data set out above. Her “estimate” for the High-3 is $7,840, and her Retired Pay Multiplier (assuming that she has just finished serving 20 years) is 20 X 2.5%, or 50%. The combination of these gives $3,920/mo. This is the projected retired pay for Major Doe if she were to retire at the 20-year mark with the above as her High-3 pay.
Every pension division instrument must state that there has been compliance with the Servicemembers Civil Relief Act, or SCRA. In general, this means that the rights of the servicemember (such as the right to obtain a stay of proceedings under certain conditions and the bar against default judgments) have been protected. The statute is found at Chapter 50 of Title 50, U.S. Code.
MAGIC WORDS: “The rights of John Doe, the defendant, under the Servicemembers Civil Relief Act, Chapter 50 of Title 50, U.S. Code, have been observed.”
Getting direct payments from the retired pay center is important for the former spouse (FS); it means a regular garnishment of retired pay, deposited in the recipient’s bank account around the first of each month. It is important for the retiree as well, since it eliminates the need to write a check to the FS every month and to keep track of COLAs (cost-of-living adjustments) once a year.
The “retired pay center” is DFAS, the Defense Finance and Accounting Service, for those who are retired from the Army, Navy, Air Force and Marine Corps. It’s the Coast Guard Pay & Personnel Center for those retiring from the Coast Guard and the commissioned corps of the Public Health Service (PHS) and the National Oceanic and Atmospheric Administration (NOAA).
According to the USFSPA, the retired pay center cannot garnish retired pay as property division unless it appears from the application for a share of retired pay that the marriage overlaps the creditable service by at least 10 years. Thus it is essential to include this essential language in the pension division instrument.
MAGIC WORDS: “The parties were married to each other for at least 10 years during which the member performed at least 10 years of service creditable in determining the member’s eligibility for retired pay.”
Surprisingly, the phrase “disposable retired pay” is not in the set of “magic words” for the pension order. Although Congress stated in the USFSPA that “disposable retired pay” is all that a state court can divide in military pension division (see 10 U.S.C. §1408 (a)(4)), the rules have made this term irrelevant or, more properly, disposable. All awards of a portion of the military pension are to be construed as dividing the retiree’s “disposable retired pay,” regardless of their wording. So your order will not be rejected for faulty language or the absence of “magic words” if it divides John Doe’s “military pension” or “uniformed services retired pay,” for example.
Interim payments must be addressed in the pension division order. That’s because the parties need to know who makes what payments while the order is being processed by the retired pay center. According to the USFSPA (see 10 U.S.C. §1408 (d)(1)), the pay center will begin pension-share payments within 90 days of the retiree’s entitlement to receive retired pay or 90 days from the receipt of an acceptable order, whichever is later. For this reason, the order should specify that the retiree is responsible for payments in the interim. In a case where John Doe is the plaintiff and the military member or retiree, the following phrasing would be useful.
MAGIC WORDS: “Plaintiff will receive payments at the same time as Defendant. The parties acknowledge that DFAS is not required to begin payments to the former spouse until 90 days after receipt of an acceptable order or the start of retired pay, whichever is later. Defendant will be responsible for making these payments each month to Plaintiff until DFAS begins making these payments to her, and during this interim, Defendant will pay Plaintiff directly her full share, unadjusted for taxes.”
Finally, there are “magic words” involved in phrasing the award. The retired pay center will only accept a pension division instrument which specifies the award to the FS in terms of a fixed amount, percentage, formula, or hypothetical amount of retired pay. Examples of each one may be found in these Silent Partner infoletters: “Getting Military Pension Orders Honored by the Retired Pay Center,” and “Military Pension Division: Guidance for Lawyers.” All of the Silent Partner infoletters will be found at www.americanbar.org > Family Law Section > Military Law Committee, and at www.nclamp.gov > Publications.
Note that “one size fits all” definitely doesn’t apply to military pension division orders. A good practitioner will check and re-check the pension division order to be sure it complies with the regulations and the statute, accomplishes the needs of the client, makes sense, and will be honored by the retired pay center. Here is a checklist that DFAS uses for pension division orders:
More detailed information and illustrations can be found in Chapter 8 of THE MILITARY DIVORCE HANDBOOK (Am Bar Assn., 3rd Ed. 2019).
The two prior pieces about the issue of special language in military divorce cases dealt with a) wording to secure the Survivor Benefit Plan for the non-military spouse, and b) wording required by the Frozen Benefit Rule so that the retired pay center would accept the pension division order. This “magic words” installment deals with the all-important issue of jurisdiction. If the court lacks jurisdiction, then your efforts would be wasted. Be sure that the judge makes the right findings.
The issue of jurisdiction under 10 U.S.C. 1408, the Uniformed Services Former Spouses’ Protection Act, is covered at subsection (c)(4) of the statute. Since most cases are settled with a consent order or a separation agreement incorporated into the divorce decree, the likely “magic words” you’ll need to use would be: “The court has jurisdiction to divide the uniformed services retired pay of the defendant, John Doe, due to his consent to the jurisdiction of the court.”
When the case is contested, you’ll have to look elsewhere for a jurisdictional basis for the order dividing military retired pay. The usual base to use is domicile. If your state is the “state of legal residence” of John Doe – that is, his domicile – then the order might state: “The court has jurisdiction to divide the uniformed services retired pay of the defendant, John Doe, due to his domicile in the state of East Virginia.”
Don’t be deceived by “home of record.” That phrase is not intended to mean one’s domicile. It’s only a reference to the place from where John Doe entered the service, and to which his household goods will be shipped upon his discharge. It may be his domicile, but that’s not dead certain. For example, when I entered military service in December 1971 [that so long ago that dinosaurs ruled the earth!], my domicile and my home of record were both Ohio, since I went on active duty from Cleveland. When I was transferred to Ft. Bragg in 1972, both were still Ohio. But in 1976 when I decided to obtain reciprocity admission to the N.C. Bar, I changed my domicile to N.C. (by changing my car title and driver’s license, my bank, my voting records, my personal property tax listing, my state income tax info, etc.), even though my home of record remained Ohio. You can look up the incidents of domicile in a Silent Partner infoletter, “Divorce and Domicile,” at www.americanbar.org > Family Law Section > Military Law Committee, or at www.nclamp.gov > Publications. The infoletter contains a checklist of every conceivable item that would be relevant in a domicile determination.
The last test is rarely used. It involves the exercise of jurisdiction by the court in East Virginia due to John’s residing in that state, but not due to military orders. Thus your order might use the following “magic words” for jurisdiction, assuming that you have the facts to back this up: “The court has jurisdiction to divide the uniformed services retired pay of the defendant, John Doe, due to his residence within the territorial jurisdiction of the court other than because of military assignment.” This test is only used when there is a nearby state boundary, such as the following – John is stationed at Eglin AFB, Florida, but he’s living just across the state line in Gulf Shores, Alabama, to be near his aged parents (and to get rent-free lodging). In that case, Alabama could exercise
jurisdiction over the military pension division, since John’s residing in Alabama is not due to his military assignment in that state.
The rules for military pension division are published by DFAS, the Defense Finance and Accounting Service; they’re found at the Dept. of Defense Financial Management Regulation, Vol. 7b, Chapter 29. The rules state that for a court order to be accepted, it must explicitly state the basis for the court’s exercise of jurisdiction. So don’t just recite the usual “blanket language” of “This court has jurisdiction over the parties and the subject matter of this case” without adding the proposed language set out above.
Anything less than the specific basis for jurisdiction will result in a rejection letter from the retired pay center, whether that’s DFAS (for Army, Navy, Air Force and Marine Corps) or the Coast Guard Pay & Personnel Center (for USCG, and for the commissioned corps of NOAA and PHS).
All of this (and more) can be found in Chapter 8 of THE MILITARY DIVORCE HANDBOOK (Am Bar Assn., 3rd Ed. 2019). The website is: https://www.americanbar.org/products/.
-Mark Sullivan
The last article on “Magic Words” pointed out the unique language required to effect a valid former-spouse election for the Survivor Benefit Plan. This exploration will cover life, not death. When the military pension is divided by the court, the order which grants lifetime pension division can be a divorce decree, a settlement incorporated into the decree or a consent order, sometimes called a military pension division order (MPDO). The order is required to have two special phrases (or what you might call “magic words”) to comply with federal law.
The law, of course, is the federal statute which allows the division of military retired pay by state courts; that’s the Uniformed Services Former Spouses’ Protection Act, or USFSPA, located at 10 U.S.C. §1408. An amendment in 2016 restricted the division of military retired pay to that which exists on the day of divorce. The “Frozen Benefit Rule” thus limits any further growth of the pension by taking a snapshot at the time of divorce. To provide information which the retired pay center needs to make this calculation, the law requires that every pension order state two data points: a) the High-3 pay of the servicemember on the date of the dissolution and b) the member’s years of creditable service (or, in the case of Guard/Reserve members, the date-of-divorce number of retirement points). This rule applies, pursuant to 10 U.S.C. §1408 (a)(4)(A), to the military pension division cases where the divorce was granted after December 23, 2016 and the member was not receiving retired pay at divorce.
There is no exception if you’re within this window. Congress did not leave a loophole for the parties to “consent otherwise.” Thus the husband and wife are not free to write their own agreement, since Congress has decided to tell them what they can do.
The High-3 compensation of an individual is his or her highest three years of base pay, stated as a monthly amount (e.g., “John Doe’s High-3 at divorce was $4,567.89 per month”). That will require a clear understanding of John Doe’s current rank and years of service, as well as his date of initial entry into military service (or DIEMS) and his last promotion date, unless counsel somehow “gets lucky” and obtains the appropriate number of past pay statements from the servicemember. While not on a par with calculus, the computations are not easy for most attorneys.
The years of creditable service will depend on pay records (and other documents when there was a break in service). Counsel must know the difference between DIEMS (see above) and the PEBD, or Pay Entry Base Date. The retirement points calculation means that counsel must have access to John Doe’s annual Reserve/Guard points statement.
None of this is simple, and it’s often a wise idea to hire an attorney who’s “been around the block” with these problems a couple of times. That’s what we call a co-pilot or – in the words of Tom Cruise – a “wingman.” It’s also possible to attempt this alone by reading “Military Pension Division and the Frozen Benefit Rule: Nuts ‘n’ Bolts,” a Silent Partner infoletter which may be found at https://www.americanbar.org/groups/family_law/ > Military Law Committee, or at www.nclamp.gov > Publications.
All of this (and more) can be found at “The Frozen Benefit Rule” in Chapter 8 of THE MILITARY DIVORCE HANDBOOK (Am Bar Assn., 3rd Ed. 2019).
In “Jack and the Beanstalk” it is the “magic beans” that start the story. In “My Cousin Vinny,” the best line in cross-examination features “magic grits.” In military divorce cases, “magic words” are sometimes the answer.
There are several military pension division areas in which “magic words” or specific language can make the difference between success and defeat, between a happy client and a grievance (or worse!). One of the most important places to focus on language is in the paragraph in the pension division order which deals with the Survivor Benefit Plan. Attorneys who represent the non-military spouse or former spouse know that providing for this survivor annuity is an essential part of a property settlement.
Whether the pension-division text is found in the divorce decree, an incorporated settlement, or a separate consent order (often called a Military Pension Division Order, or MPDO), the attorney representing the spouse or the former spouse (FS) must be sure that specific requirements are set out clearly in order to secure SBP coverage. Without terms which anchor the SBP in the settlement, the retired pay center will deny the spouse or former spouse this substantial benefit, since the pension-share payments end when the servicemember or retiree dies. [Note: The retired pay center is DFAS, the Defense Finance and Accounting Service, for Army, Navy, Air Force and Reserve retirees; for those retiring from the Coast Guard or the commissioned corps of the Public Health Service or the National Oceanic and Atmospheric Administration, it is the Coast Guard Pay & Personnel Center.]
SBP is an income-continuation program, not strictly speaking a part of the pension. It allows the FS to continue receiving payments after the member’s death. The amount paid is 55% of the selected base amount. Payments constitute taxable income, and they increase annually with inflation through cost-of-living adjustments, or COLAs.
The basic language to be use – the “magic words,” if you wish – can be written quite simply into the instrument that divides the pension: “John Doe will immediately elect his wife, Jane Doe, for former-spouse Survivor Benefit Plan coverage.” It’s that simple!
Those who want to put a bit of frosting on the cake can use some additional language. Here are several add-ons to insert after the above sentence regarding SBP election:
The addresses to use are on the forms. The deadlines for submission of the necessary documents are one year from the divorce (for the member/retiree) and one year from the order requiring SBP coverage (for the former spouse.).
All of this (and more) can be found at “SBP – Choose It or Lose It” in Chapter 8 of THE MILITARY DIVORCE HANDBOOK (Am Bar Assn., 3rd Ed. 2019).
Mark E. Sullivan, COL, USA (Ret.)
Sullivan & Hilscher Family Law
EX-WIFE OBTAINS SURVIVOR BENEFIT PLAN PROTECTION-
-COURT ORDER FINALLY HONORED BY FEDERAL GOVERNMENT.
Federal law allows a former spouse to obtain Survivor Benefit Plan coverage in military divorce cases, but the application must be made within strict deadlines. If they’re missed, the benefit may be lost.
Our client, “Jane Doe,” married her husband in 1964 and the parties were divorced in 2004 in Minnesota. That’s a marriage of 40 years!
Before they were divorced. “John Doe” was determined to be mentally incompetent. We were hired by the parties’ adult daughter, “Susan,” who was the permanent guardian of her father.
The divorce judgment awarded the Survivor Benefit Plan protections (55% of husband’s retired pay for the rest of her life) to Jane Doe.
The problem was – no one was aware of the “deadline dilemma.” When SBP (the Survivor Benefit Plan) is ordered in a divorce case, the military member or retiree (here – John Doe) must apply to the government for coverage within a year of divorce. And the former spouse, Jane Doe, has to submit a deemed election document to the government within one year of the court order granting SBP to her.
Neither party knew anything about the deadlines and they were missed. Then in 2014 John died. Ordinarily, that’s the end of the case…
Not here, however!
Jane and her local attorney in Minnesota – a National Guard JAG officer whom I have known for 20 years – contacted us in 2015 to assist them in securing former-spouse SBP coverage. We then contacted Susan, the daughter and guardian of the deceased ex-husband.
Supporting Our Military Families
We made an application to the Board for Correction of Naval Records (BCNR), requesting an administrative change in the military records of the former husband to show that he’d made the election of SBP “on time,” that is, within the statutory record window.
I signed the application memo on January 30, 2018. Just last week the BCNR had voted to approve our request for SBP coverage for our client.
“Susan” – the guardian – was overjoyed. The client was ecstatic. This means that we’ll be able to ensure that the client receives a benefit which equals 55% of the late ex-husband’s retired pay for the rest of her life.
And there will be a lump-sum back payment to Jane for what was due to her for the past 5 years.
And it’s increased by COLAs to account for inflation! Jane can live to be 102 and still receive payments for the survivor annuity.
Here are some practice tips for the lawyer or client not familiar with these rules and restrictions:
There’s an expanded section on Board applications in my book, The Military Divorce Handbook (Am. Bar Assn., 3rd Ed. 2019). Go to Chapter 8 – it’s all there, with references to the statutes and the regulations. The appendices show examples of documents to file in support of an application.
–Mark E. Sullivan
The Military Divorce Handbook has sold almost 400 copies in 2 ½ months and will go into its second printing within the next 30 days! The revenues it has brought in for the ABA Family Law Section have helped make it possible to continue the good work that the Section does.
The Military Divorce Handbook is now available in its Third Edition as of May 20, the American Bar Association announced. This third version of the ABA best-seller is 40% larger than the Second Edition, with two volumes due to the significant increase in content.
I hope you’ll find my book useful and easy to read. I spent three years putting together this edition!
-Mark Sullivan
