"Beat the Clock": Deadlines in a Military Divorce Case.

• Author: Hilscher, Kristopher J.

In this article, we tackle how to address deadlines in military divorce cases. The essential component of "beating the clock" is critical to manage malpractice risk. Military divorce cases have deadlines that must be met to ensure (or exclude) the eligibility of a spouse or former spouse regarding federal and military benefits, such as the survivor benefit plan and military medical care.

Military Pension Division Orders

While there is no deadline for military pension division orders (MPDO), (1) there are implications for a delayed preparation and submission. Arrearages are the first issue. The retired pay center, U.S. Coast Guard Pay and Personnel Center or Defense Finance and Accounting Service (DFAS), will not collect back payments from the member. Direct pay to the spouse only includes current retired pay garnishment.

The second issue sounds a lot like the law school rule regarding liens: first in time, first in right. A practitioner must beat the next spouse to the pension. The passage of time leaves room for a subsequent spouse to register and obtain his or her share of the pension. Failure to timely submit a MPDO could result in a reduced share for your client. (2)

Lastly, there is a risk that delay could lead to arguments under general principles of civil litigations and time. Defenses such as failure to prosecute, laches, (3) and statute of limitations (4) can be avoided with prompt action and attention to deadlines. The author is currently involved in a case in which the servicemember is arguing the court lacks subject matter jurisdiction over the spouse's pension division because the spouse sat on her rights for a period of years prior to seeking a military pension division order. The old saying, "An ounce of prevention is worth a pound of cure," applies. A spouse should timely submit a MPDO to avoid these types of issues and arguments down the road.

Survivor Benefit Plan Coverage

The former spouse pension share ends on the death of the servicemember. To protect the spouse, many military retirees elect survivor benefit plan (SBP) "former spouse" coverage so that the former spouse will continue to receive the pension after the death of the member. (5) SBP must be elected within one year of the divorce decree. (6) DD Form 2656-1 is used for submissions to DFAS and the USCG Pay and Personnel Center for the servicemember. To perfect the SBP, three steps must be taken: 1) There must be a requirement for SBP in a court order or separation agreement; 2) the request for coverage must be made; and 3) the election and appropriate paperwork must be registered with the pay center. The effective time for the election is upon receipt by the retired pay center. (7) If the election is not being made under a court order, the submission must indicate whether it is pursuant to a voluntary written agreement with the retiree incident to divorce, and whether the agreement was ratified, approved, or incorporated by the court. (8)

If the servicemember does not submit the appropriate documentation to obtain coverage, the former spouse can still obtain SBP coverage by serving a written request, the appropriate form, and a certified copy of the appropriate court order. The deadline for this request is receipt by the center within one year of the order providing SBP coverage for the former spouse. DD Form 2656-10 is used for the former spouse' election under these circumstances, called a "deemed election." If the member is retired already, (9) there may be significant issues.

These two one-year deadlines are distinct, one involving the spouse and one involving the servicemember. Because a divorce decree often does not include the terms of a property settlement, the court often reserves property division for a later date. Occasionally, the court resolves some of the division of the parties' assets and debts, but leaves other terms to be resolved in the future. Thus, the order that provides for SBP coverage could precede or follow the divorce decree. To avoid disaster, counsel should monitor these dates carefully on an internal calendaring or reminder system and ensure the deadlines are met. The missed SBP deadline is a commonly seen malpractice issue in military family law.

Practice tip: the DD forms listed herein come up on any internet search by typing in "DD Form 2656-1" or "DD Form 2656-10." Note that DFAS will change the forms from time to time, so it is wise to double check to make sure the most current form is being used prior to submission.

SBP Timing--Retirement

Retirement presents an additional deadline for SBP coverage. If the servicemember retires and does not elect coverage or elects spouse (or spouse and child) coverage...