Military Divorce

Survivor Annuity Success

Last week we received word from the Defense Department of a major victory in one of our cases.  It involved the Survivor Benefit Plan.

EX-WIFE OBTAINS SURVIVOR BENEFIT PLAN PROTECTION-

-COURT ORDER FINALLY HONORED BY FEDERAL GOVERNMENT.

THE BASICS

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.

THE BACKSTORY

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.

THE BOTTOM LINE

Here are some practice tips for the lawyer or client not familiar with these rules and restrictions:

  1. A) Ensure that SBP is included in the divorce settlement.
  2. B) Be sure to comply with the statutory deadlines for SBP registration with the retired pay center.
  3. C) If they’re missed, apply to the appropriate Board for Correction of Military Records (10 U.S.C. 1552) to ask for correction of the military records to reflect SBP coverage.

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.

 

Just Released! THE MILITARY DIVORCE HANDBOOK (3rd Ed.)

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.

What’s new in the book?  Just a few of the improved sections are:  

  • In Chapter 1 you’ll find an expanded section about rules and resources for getting documents from the government (e.g., pay records, retirement orders, VA rating, time in service and type of discharge) under the Freedom of Information Act and the Privacy Act.
  • Chapter 2 contains a new glossary of cases on the Servicemembers Civil Relief Act, a chart showing the new statutory sections for the Act since its codification by Congress in 2015, and new information on how to search the Defense Department’s on-line database for whether a party is serving in the military.
  • Chapter 3 includes a section-by-section analysis of the Uniform Deployed Parents Custody and Visitation Act (now the law in 14 jurisdictions), and an expanded section on international kidnaping remedies and the Hague Abduction Convention.
  • In Chapter 5 on “Domestic Abuse,” the reader will see new written resources and tools regarding domestic violence and the Family Advocacy Program, a section on Article 128b of the Uniform Code of Military Justice (making domestic violence a new criminal offence), and new information on representation for sexual assault victims and compensation for domestic-abuse victims.
  • A link to the Army JAG School’s Federal Income Tax Course is found at Chapter 7, along with guidance on tax-free allowances and their impact on the income of servicemembers.
  • In Chapter 8 on division of property and pensions, you will find entirely new sections on the Blended Retirement System (which took effect Jan. 1, 2019), the Supreme Court’s 2017 Howell decision as to VA payments and indemnification, new rules about the amendment to the Uniformed Services Former Spouses’ Protection Act which freezes the divisible pension on the date of divorce (the “Frozen Benefit Rule”), new resources for understanding military retired pay, and an expanded section on reduction in grade at retirement due to misconduct.

I hope you’ll find my book useful and easy to read.  I spent three years putting together this edition!

-Mark Sullivan

Absence, Basic Training, Custody and Deployment: the A-B-C-D of Military Parenting

The hazards of military service are well known. Lesser known are the hazards to home life’s rights and responsibilities that service in the military brings. A pair of cases decided on January 29 brought to light the impact of military duties on custody and visitation.

In Hazelett v. Hazelett, the Indiana Court of Appeals reviewed a case in which the parties were married for about 6 years when the mother filed for divorce; two months later, their child was born while the father was serving overseas. Finding that the father had been absent due to military duties in South Korea, he had only been in Indiana for five days after the child’s birth, and he had not had any type of contact with the child, including by electronic means, from birth until his return to Indiana the week before the final hearing in the case, the judge granted custody to the mother, ruled out overnight visitation until the child was three, and required visitation to be supervised.

The father contended that the trial court erred by denying him overnight parenting time based solely on his absence due to his military service. The appellate court considered this to be a challenge to the trial court’s award of legal custody to the mother on the sole basis of his military service. The Indiana statute prohibits a judge from considering a “parent’s absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order.”

The trial court’s order was sparse on facts; in addition to the above, it merely stated that the mother had been the child’s primary caretaker since birth and the father had had very little contact with the child. The Court concluded that the judge did, in fact, consider the father’s absence due to military service as a factor in awarding mother sole legal custody, which is prohibited by statute.

The Court of Appeals ruled that the trial judge had improperly considered the father’s active-duty status as a factor in awarding mother sole legal custody, and it had failed to enter appropriate findings. It reversed the custody ruling and remanded the case.

[Author’s Notes: The reader might be confused about the “overnight visitation” argument of the father, who was stationed in South Korea at the time of the hearing. While such parenting time was not possible on a week-to-week basis for the father, it would certainly be a consideration when he took leave to return to Indiana; all servicemembers get 30 days of leave per year, accruing at 2.5 days per month. He might also utilize overnight visits upon his return from the overseas posting; his next base assignment was to be Ft. Carson, Colorado.

Also worth note is the mention of contact by electronic means. If Indiana had enacted the Uniform Deployed Parents Custody and Visitation Act, the father could have petitioned for an order requiring or allowing his regular communication with the mother and the child through electronic means. When parents cannot agree on custody and visitation terms, Article 3 of the UDPCVA sets out provisions for agreements and orders which allow an absent military parent to use electronic means in communicating with the child or children.

The UDPCVA also prohibits the court from using a parent’s past deployment or possible future deployment itself as a negative factor in determining the best interests of the child. Section 107 of the Act states:

In a proceeding for custodial responsibility of a child of a service member, a court may not consider a parent’s past deployment or possible future deployment in itself in determining the best interest of the child but may consider any significant impact on the best interest of the child of the parent’s past or possible future deployment.

In 2013 North Carolina became the second state to adopt the UDPCVA.]

* * *

On the same decision day and just three states away, the Oklahoma Supreme Court was exploring the issues of custody, visitation and deployment. The parties in Kohler v. Chambers were the biological parents of a child and they shared joint and equal custody and visitation time under a 2016 order. When the father received Army orders for basic training, he filed a motion with the court asking that his time with the child be transferred to his wife. Under the Oklahoma Deployed Parents Custody and Visitation Act, passed in 2011, the deploying parent is entitled to request transfer of his or her visitation rights to a step-parent, a designated family member, or another designated individual. There is a rebuttable presumption that the substitute custody/visitation time is in the best interest of the child and that the step-parent or other individual has a close and substantial relationship with the child.

The mother opposed the father’s motion. She didn’t argue that the substitute custodial time wasn’t in the child’s best interest. She did not say that the father’s current wife lacked a close and substantial relationship with the child. Rather, she argued that the father didn’t qualify since he was not being deployed. He was being ordered to basic training for nine weeks in South Carolina, followed by 19 weeks of advanced individual training in Virginia. The trial judge allowed the father’s motion and granted substitute parenting time rights to the step-mother.

The mother appealed. She argued that the statute applies only to parents who have been “order[ed] to another location in support of combat, contingency operation, or natural disaster,” and not those parents who receive orders for basic training.

The Oklahoma Supreme Court noted that the Uniform Law Commission formally adopted the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) in July of 2012. It was designed to address unique issues arising during the deployment of military personnel, including maintenance of the parent-child bond during a parent’s temporary absence due to deployment, resuming normal custody and visitation following a servicemember’s return from deployment and preventing a deployed parent from being penalized as a result of serving his or her country. The Oklahoma statute, which was “[v]ery similar to early drafts of the UDPCVA, … was enacted by the Oklahoma Legislature during the 2011 session, and became effective May 26, 2011.

The Court then examined the definition of “deployment.” The Oklahoma statute states that this term means

…the temporary transfer of a servicemember in compliance with official orders to another location in support of combat, contingency operation, or natural disaster requiring the use of orders for a period of more than thirty (30) consecutive days, during which family members are not authorized to accompany the servicemember at government expense.

Finding that the father’s assigned duties did not qualify as deployment, the Court reversed the trial ruling, leaving the child without contact with the father’s side of the family for 28 months.

[Author’s Notes: The background music for this Oklahoma drama might be Simon and Garfunkel’s 1966 hit, “The 59th Street Bridge Song,” which begins “Slow down, you move too fast.” If the Oklahoma legislature hadn’t jumped the gun by enacting an early version of the Uniform Deployed Parents Custody and Visitation Act, this case wouldn’t have arisen.

I was a member of the Drafting Committee of the Uniform Law Commission which wrote up the UDPCVA. The initial version spoke of “deployment” in strict terms as to support of combat and contingency operations. We debated that. I pointed out that there were many other instances of “military absence” which should also trigger the rights and duties set out in the Act. For example, a servicemember could be assigned without dependents to a remote tour (e.g., Iceland or Turkey), a six-month “float” on board a Navy vessel, or temporary duty (TDY) for training or a special mission. Why limit the protection of the Act to the strict definition of “deployment” involving military operations?

We finally reached an agreement. In Article I, Section 102, deployment is defined to mean “…the movement or mobilization of a service member for more than [90] days but less than [18] months pursuant to uniformed service orders that:

(A) are designated as unaccompanied;

(B) do not authorize dependent travel; or

(C) otherwise do not permit the movement of family members to the location to which the service member is deployed.”

Perhaps a future amendment to Oklahoma’s statute will “loosen up”

the definition to include more servicemembers and their children.]

The cases are:

Hazelett v. Hazelett, 18A-DN-1592, 2019 Ind. App. LEXIS 36*; 2019 WL 347975.

Kohler v. Chambers, Case Number: 116391, 2019 OK 2 *; 2019 Okla. LEXIS 3 **; 2019 WL 350336.

*Mr. Sullivan, a retired Army Reserve JAG colonel who practices family law in Raleigh, NC, is the author of The Military Divorce Handbook (Am. Bar Assn.), about to go into its third edition. He helps attorneys nationwide with cases involving military divorce issues and the division of military retirement benefits.

Mark Sullivan Recognized as Expert

Mark’s recognition as an expert in military retirement benefits came from a recent opinion of the Arkansas Court of Appeals. The October 3 decision, Hargis v. Hargis, involved the division of the ex-husband’s military pension. The divorce settlement gave the former wife half of the pension as of the date of divorce. The ex-wife, however, wanted half of the entire pension, including that earned before the marriage and after the divorce. Mark’s calculations carried the day, however, and the Court stated that he had correctly calculated the ex-wife’s share. The Court, recognizing him as a retired Army Reserve JAG colonel, cited him in the majority and the concurring opinion, and noted that Mark “is the author of a book [THE MILITARY DIVORCE HANDBOOK (Am. Bar Assn., 2d Ed. 2011)] on military divorce covering military retirement and pensions.”

Costly Mistakes in Military Divorce

In too many military divorces, a client or lawyer makes a costly mistake.  Often it’s because the client is unaware of the options or the law, someone relies on rumors and myths, “barracks lawyers” and buddies provide well-meaning but erroneous information, the attorney is unaware of the rules for military retirement and its division, or the rules themselves are too complex, illogical and confusing.  For advice and assistance navigating your military divorce, call us at 919-832-8507 for a consultation.