Posts tagged with "Military Divorce"

Double Deception

O, what a tangled web we weave when first we practice to deceive.
– Sir Walter Scott

Deception and military custody


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.

Jamie’s Deception

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.

Jason’s Deception

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.

What Happened Next

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.

The Court’s Concerns

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.

Pulling Back the Curtain

The facts about deployment and the settlement were revealed out in the Court of Appeals decision. The Court noted that:

  • Jason received TAD (Temporary Additional Duty) orders to Cuba three months before the settlement was signed. The tour of duty was for nine months.
  • Despite the pendency of timesharing and custody issues between the parties, Jason didn’t disclose the assignment orders to Jamie when he received them or within a reasonable time thereof.
  • When the parties signed the settlement on custody and timesharing, Jason still had not revealed to Jamie his TAD orders, which required him to report just three days after the typewritten settlement in court.
  • The day after the court settlement, Jason told Jamie that he had TAD orders, he was leaving Hawai’i in two days, “and told her that he was sending the children to live with his parents in Virginia for the duration of his TAD.” Id. at *17.
  • “Thereafter, [Jamie] discovered that on June 2, 2015, [Jason] had notified the children’s schools that the children’s last day of school would be June 3, 2015 and that they were to be permanently released as they were moving to Virginia…. [Jason] had not disclosed this notification to [Jamie] prior to the parties’ June 3, 2015 agreement at Court…. [Jamie] also discovered that on May 26, 2015 [Jason] had arranged for a 16 foot storage pod to be delivered to his address on May 30, 2015…. On June 6, 2015, [Jason] left Hawai’i with both children and dropped them off at his parent’s house in Virginia.” Id. at *17-18.

The Appellate Decision

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.

Lessons to be Learned

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

Estimating Military Retired Pay

Mark E. Sullivan*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



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.

“What’s the Formula?”

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:

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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

“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.

  • How to obtain the documents and do the calculations is set out in the Silent Partner infoletter, “Military Pension Division and the Frozen Benefit Rule: Nuts ‘n’ Bolts,” found at > Publications.
  • The quick way to estimate this is to take the current pay of the member, obtained from his or her Leave and Earnings Statement, or “LES” (or other equivalent pay statement, such as the “PaySlip” for Coast Guard member), and multiply it times 98%. Thus if Major Jane Doe receives $8,000 per month as her base pay, the estimate for her High-3 Pay would be $8,000 X .98% or $7,840.

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., DoD 5400.11-R (May 14, 2007). Other items may also be disclosed.

Years of Service

“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, > 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!

Example of the Calculation

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.


“Magic Words” – Last Chapter

“Magic Words” - Last Chapter

Published on January 11, 2020

Mark Sullivan

Mark Sullivan

Sullivan & Hilscher Family Law



    The final set of “magic words” are ones which belong in every military pension division order, incorporated settlement or divorce decree. These required phrases are set out in the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. §1408, and in the rules for administration and enforcement of pension division, found at Chapter 29 of Vol. 7b, Dept. of Defense Financial Management Regulation (a.k.a. the DoDFMR).


    Compliance with the SCRA

    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.”

    The “10/10 Rule”

    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.”

    “Disposable” Retired Pay – It’s Disposable

    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.

    In the Meantime…

    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.”

    Language for the Award – Four Options

    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 > Family Law Section > Military Law Committee, and at > Publications.

    A Helpful Checklist

    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:


    • SERVICE OF APPLICATION (personal, certified or registered mail, return receipt requested)

    More detailed information and illustrations can be found in Chapter 8 of THE MILITARY DIVORCE HANDBOOK (Am Bar Assn., 3rd Ed. 2019).

    Magic Words – Again?

    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.”

    jurisdiction to divide the uniformed services retired pay
    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 > Family Law Section > Military Law Committee, or at > 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:

    -Mark Sullivan


    “Magic Words,” Volume 2

    Wording for military pension division orderThe 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 Frozen Benefit Rule

    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.

    “High-3” Pay, Years of Service

    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 > Military Law Committee, or at > 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).

    “Magic Words” in the Military Divorce

    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:

    • “He will elect SBP for her using his full retired pay as the base amount.” [Note: The base can be anything from full retired pay down to $300 a month; failure to specify the base results in a base amount of one’s full retired pay.]
    • “He will make the election on DD Form 2656-1, will send a copy promptly to the retired pay center along with the divorce decree and any other order requiring former-spouse SBP coverage, and he will transmit a copy of these documents promptly to Jane Doe’s lawyer.” [Note: For members of the Reserves and National Guard, as well as their spouses, the forms need to be sent to that agency, not to the retired pay center; thus the Army Reserve office would be Human Resources Command at Ft. Knox, and the Air National Guard would be at Buckley AFB, Colorado.]
    • “Jane Doe may submit a deemed election to secure her SBP coverage, using DD form 2656-10.”

    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

    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.

    Costly Mistakes in Military Divorce

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