Fact or "whacked"? Myths and Mistakes in Military Divorces

• Jurisdiction: North Carolina,United States,Federal
• Citation: Vol. 36 No. 2
• Publication year: 2014
• Author: Mark E. Sullivan
• topic: Family Law,Military Law

Fact or "Whacked"? Myths and Mistakes in Military Divorces

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., 2nd Ed. 2011) 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.

Introduction

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. This article is intended to help lawyers and their clients to sort out truth from "urban legends," the fact from the "whacked."

Half the Military Pension?

"It was not his fault," Mrs. Green explained when she brought her new husband, retired Army Master Sergeant Jake Green, to see the divorce lawyer. "He was very upset when he went through the divorce from his ex-wife, Jane. He was confused. He didn't have a lawyer and he didn't pay attention to what he was signing."

"You're right about that, ma'am," the new divorce attorney replied. "I've reviewed these divorce papers, and it appears that he signed away half of his military pension to his ex-wife, even though he'd only been married to her for ten of the thirty years he was in the Army. That's a huge problem, and he wasn't forced to do it — he did it willingly. Jane got way more than she should have."

FACT #1: Unless the marriage lasts for the entire military career / know about the "marital share."

MSG Jake Green didn't. He gave away half of his pension, when he should have divided only the marital share of the pension. The marital share is that acquired during the marriage while in military service. It begins with the wedding or the start of military service, whichever comes later. It ends usually on the date of marital separation or divorce, depending on state law. In Jake's case, he gave away too much of the pension — 50% to his ex — rather than the correct percentage, which probably would have been closer to 16%. "It's all his lawyer's fault," shouted the new Mrs. Green. "He didn't know a thing about dividing military retirement pay!"

Survivor Benefit Plan Basics

"That's for sure," replied the new divorce lawyer. "It's obvious he didn't know anything, because that lawyer also missed out on the Survivor Benefit Plan. He should have written the agreement to award the SBP to Jane, the former Mrs. Green, but he completely overlooked it. It's left out. He probably wasn't even aware it was available."

FACT #2: Ignorance of the SBP (Survivor Benefit Plan) can be costly

Jake's divorce settlement should have specified who got the SBP. Ordinarily, this is awarded to the non-military spouse (Jake's ex-wife) especially if she has been with him for a substantial part of the marriage. Occasionally the former spouse gives it up as a bargain against something like life insurance, so that the SM or retiree can retain it for a possible future spouse. SBP coverage means that the non-military spouse, if she survives the retiree, gets 55% of the selected base amount of the pension for the rest of her life. This was a huge benefit that Jane Green (Jake's ex-wife) didn't receive. Without SBP, Jane's share of the pension stops when Jake dies. This is another costly mistake." The biggest malpractice mistakes I've seen lie in the area of SBP," says Mike McCarthy — a Phoenix retired attorney and retired Air Force Reserve brigadier general. "Either the attorney for the former spouse doesn't know about this survivor annuity, or there's only an agreement (instead of a court order). Otherwise, the order providing for SBP coverage is never sent to DFAS. Any of these errors is huge and costly."

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Mistakes at the Start of the Case

Mistakes can be made at the start of the case. Let's say Mary Doe is suing her husband, John Doe, a senior master sergeant in the Air Force, for divorce and military pension division. Mary's lawyer might make the mistake of choosing where to sue John to get division of the military pension. Usually a lawyer will just include the pension and property division in the divorce lawsuit, suing where Mary happens to live. This can be a costly problem.

FACT #3: To be safe, sue the SM in the state of his legal residence

To be sure you can get the pension divided, bring the lawsuit in the legal residence state or "domicile" of the SM. The federal law that allows military pension division, The Uniformed Services Former Spouses' Protection Act (USFSPA), says that one can always obtain military retirement division in that state. Any other state is "iffy" since it may depend on whether the SM consents to the court's power to divide the pension. For more on that, see the next problem.

John's lawyer may fall prey to the reverse side of this rule. If the military pension rules of Mary's state aren't favorable or if the military pension rules of John's home state will benefit him, then John's lawyer should not consent to the jurisdiction...