If you have questions about any of our practice areas, about the firm or the law generally please ask by sending it to our any of our attorneys, and we will respond to you directly by return e-mail. Periodically we will use your question as a basis for an article or Q and A on this page to provide general information.

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THE MILITARY AND FAMILY LAW

Here are some current topics in domestic law relating to members of the military.

Family support

All of the military departments (this includes the Coast Guard) have regulations providing for support of the families of service members. Each department has established its own regulations for obtaining support, but they have similar characteristics. The foundation for military support orders is that (1) service members are required to follow orders and (2) it is against good order and discipline to not support your family.

In all cases, a letter directed to the commanding officer of the servicemember setting forth sufficient facts to establish the need (i.e. the military spouse has left and is not supporting his family) will generate an investigation, and where appropriate an order of support will be given. Each service establishes levels of support based upon the pay of the service member (including housing allowances), and the number of dependents (including children from other relationships). If the commander is not going to require support the spouse should receive a letter explaining this fact.

Where there is an existing order for support from a court of competent jurisdiction, the services will order that that amount be paid (notwithstanding that the military regulation may require a higher amount). In addition, in cases in which alimony is unlikely in a civil court, the military will require support anyway (assuming it is factually justified).

The uniformed services do not wish to be in the position of adjudicating rights between the parties. Accordingly, they will exercise their discretion carefully and their decisions cannot be appealed in the sense that court decisions are. Nonetheless, these provisions are a tool to get money flowing to a spouse or child who needs support.

With issues involving support, domestic violence, and other family support services consider involving local military Family Service Centers and local legal assistance attorneys (JAGs or civilian contracted employees). They can help your client break down the barriers to communicating with military leaders.

Military Retirement Pay

To have military retirement divided and paid directly from the military following an agreement or court order, the receiving spouse must file form DD Form 2293 (www.dfas.mil/money/garnish/dd2293.pdf). It must be filed by the spouse (not the service member). No special order is required. The Judgment of Divorce should recite that the court had personal jurisdiction over the service member, the date of commencement of the marriage, a recitation that the parties were married for at least ten years during which the service member completed ten years of creditable service and state how the military retirement benefits are to be divided.

Does this mean that if you do not meet the 10/10 requirement you do not get the pension divided? No. It only means that you do not meet these requirements the military (Defense Finance and Accounting Sevice or “DFAS” (www.dfas.mil)) will not make payments directly to the former spouse from the service members military retirement pay. The court can still make other dispositions of marital property (including military retirement pay) it just cannot force DFAS to pay the former spouse directly. The DD Form 2293 can be served on DFAS at the places indicated on the back of the form. The form can also be used to collect child and spousal support from military retirement pay. See 10 U.S.C §§ 1408 et seq. and 32 C.F.R. Part 63 for the full details on dividing military retirement pay and benefits.

VA disability waivers. Service members often are eligible for VA disability pay. These are tax free “retirement” benefits paid to the service member as a result of a service connected disability. To receive these benefits, service members used to have to waive dollar for dollar a portion of their military retired pay. These waived portions were no longer military retired pay and the disability pay was deemed non-marital property by the Supreme Court (Mansell v. Mansell, 490 U.S. 581 (1989)).

There are three solutions to the problem of disability waivers: (1) contractual indemnity clauses (the service member agrees to make up the difference between the spouses portion of military retired (before waiver) and that after waiver); (2) where there is an existing agreement, you can sue under contract principles and rely on Dexter v. Dexter, 105 Md. App. 678, 661 A.2d 171 (1995); and (3) The National Defense Authorization Act of 2004 amended the disability waiver requirements and is allowing limited double dipping to be phased in over a period of years. If the court ordered a division of military retired pay there is no remedy for the waiver issue except the Congressional action described above.

Servicemembers Civil Relief Act (“SCRA”)

This is the replacement for the old Soldier’s and Sailors Civil Relief Act. It is found at 50 U.S.C. App. 501 et seq. It is a tuned up version of the old act which had been around in various forms since the early part of the last century. The most important part in a divorce/family law case relates to stays of actions when the service member is “not available” because of his or her service. In essence, service members are entitled to a mandatory 90 day stay of the proceedings if their commander certifies that they are needed and that no leave is available.

In the past the courts had broad discretion to decide this issue. In the end, unless the service member was in combat they had to appear. Now that it is not so. There is no geographical requirement or any specified recitation of particular hardship. However, unlike the past where the stay may be indefinite, it is limited to 90 days at a time and only the first request is mandatory.

The other benefits of the SCRA include: reduced interest rates on loans, protection from foreclosures, lease terminations.

Thrift Savings Plan

The federal Thrift Savings Plan has been extended to active duty members of the uniformed services and reserve members in a pay status. Currently, service members can contribute up to nine percent of their base pay to the TSP. If service members contribute at least one percent of their basic pay to TSP they can also contribute between 1 and 100 percent of their specialty pays to TSP. Although the services are authorized limited matching capability for certain incentive programs, none have done so. If you look at the bottom portion of a service member’s leave and earnings statement you will find the balance of the thrift savings contributions of the service member. For more information go to www.tsp.gov.

Uniformed Services Employment and Reemployment Rights Act (“USERRA”)

This act provides protection for recalled reservists and National Guard personnel from adverse action taken by employers when they are called to duty. If you have clients who are in the reserves you may wish to familiarize yourself with its provisions so that you can intervene if employers take adverse action. See 38 U.S.C. 4301 et seq. A good outline of the rights of USERRA can be found at www.dol.gov.