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DIVORCE AND THE MILITARY II

TABLE OF CONTENTS

Chapter 1 - What You Don't Know Can Hurt You

• True cases
• Unfair but legal
• Treatment of retired pay - the result of two major legal actions
• States had been dividing retired pay in divorces
• Problems not foreseen

Chapter 2 - What USFSPA is and What it is Not

• What does the USFSPA do
• Who USFSPA applies to
• Where USFSPA applies - locations
• USFSPA characteristics
• No-fault feature
• Micsonceptions about USFSPA
• Problems and pitfalls

Chapter 3 - Where Were You in '82? (Things the Recruiter Didn't Tell You)

• Historical look at community property
• Landmark McCarty decision - precursor to the USFSPA
• Supreme Court "invites" congressional action
• Mass confusion in state appellate courts
• How the law was passed
• Post-USFSPA enactment problems not envisioned

Chapter 4 - Controversy Aplenty

• Background
• Controversies: #1 - Definition of retired pay and its treatment by the courts
• Controversies: #2 - Retroactivity (still causing problems)
• Controversies: #3 - Treatment disparate from other federal programs
• Controversies: #4 - The spouse is always treated as the "innocent" party
• Controversies: #5 - Award of retired pay based on rank at retirement, not at time of divorce
• Controversies: #6 - Circumvention of the USFSPA's protection of disability pay
• Controversies: #7 - Restrictions associated with receiving retired pay apply to the retiree but not the spouse
• Controversies: #8 - Impact of civil service employment on USFSPA award
• Controversies: #9 - USFSPA payments survive remarriage of the ex-spouse
• Controversies: #10 - Separation bonuses
• Controversies: #11 - No statute of limitations
• Controversies: #12 - Early retirement

Chapter 5 - Is it Income or Is it Property?

• Truth and consequences
• The legal morass
• Legal and other precedents
• The bottom line

Chapter 6 - Women in Uniform

• Female military must get in line behind the nonmilitary wife
• DACOWITS
• Times have changed
• Career discrimination

Chapter 7 - The Reserves and the Guard

• Reservists are not always compensated with money
• Does the "plight" apply to spouses of reservists
• Reserve retirement system
• Creditable Service
• Active duty for retirement eligibility purposes
• Computation of Reserve retired pay
• Reservists and the USFSPA
• Reservists have fewer benefits than ex-spouses
• Bottom line for reservists - you are subject to the USFSPA, however

Chapter 8 - All Divorces Are Not Alike: What You Need to Consider

• "Military" divorce vs. "civilian" divorce
• Issues unique to a military divorce
• Military benefits an important consideration
• 20/20/20 and 20/20/15 spouses
• Abused Military Dependents Act
• Dependent support
• SBP - Don't ignore the pre-retirement notification requirements
• Social Security
• Jurisdiction
• Timing can work to both the military member's and spouse's advantage
• Do's and don't's
• Compliance with the law is in your best interests

Chapter 9 - Federal Benefits: Here Today and May be Gone Tomorrow

• Allowances
• Bonuses
• Child care
• Civil Service employment
• Combat-zone and other operations exclusion benefits
• Commissary benefits
• COLA
• Dental benefits
• Dual compensation and pay
• Early or forced retirement
• Educational benefits
• Employment benefits
• Exchange shopping privileges
• Federal tax advantages
• Financial resources - retirement funds
• Hardship duty pay
• Hazardous duty and hostile fire pay
• Health benefits
• Homeowner assistance
• Incentive and special pay
• Leave
• Life insurance
• PCS relocation reimbursements
• Promotions
• Retired pay
• Separation pay and bonuses
• Social Security benefits for divorced spouses
• Space-available travel
• Temporary disability retirement list
• Temporary duty
• Transition benefits
• Bottom line

Chapter 10 - Financial Management Before and After Your Divorce

• Alimony
• Allowances
• Automobile insurance
• Bank and other financial accounts
• Bonuses
• Children
• Credit cards
• Education
• Employment with the federal government
• Health insurance
• House
• Legal fees
• Life insurance
• Moving expenses
• Property transfers
• Retired pay - conditions under which you could lose it
• Separation date - marital
• Separation date - military
• Separation pay and SSB/VSI bonuses
• Reserve and Guard
• Social Security
• Spouse preference
• Support payments
• Tax considerations
• Wills
• Post-divorce financial managment
• In summary

Chapter 11 - Survivor Benefit Plan

• Coverages
• Premiums
• Remarriage - its effects on the SBP
• Offsets
• COLA adjustments
• Tax treatment

Chapter 12 - 51 Flavors and Counting

• State-by-state analysis on divisibility of military retired pay

Chapter 13 - The Divorce Process

• What you need to know if you plan to divorce
• General filing and residence requirements
• Service - having divorce papers served
• Grounds for divorce
• Spousal support
• Child support
• Property division
• Appeal rights
• Your base legal office
• The other part of the divorce process

Chapter 14 - Selecting an Attorney

• The most critical step in your divorce
• You are still responsible
• Don't go to a lawyer who does not specialize in domestic relations law
• Interviewing attorneys
• Preparation - what you need to take to the attorney's office
• Basic information
• Personal and real property
• Financial status
• Summary of military service
• Preparation is necessary
• A word about attorney fees and other divorce costs
• Using Appendix M - Checklist for interviewing an attorney
• A final word on you and your attorney

Chapter 15 - Strategies

• Legal and moral obligations in a divorce
• Considerations and approaches
• Suggested strategies:
  • 1. Get an educated attorney
  • 2. The USFSPA is a permissive law
  • 3. Know the law regarding court rulings on retired pay while on active duty
  • 4. Do not forget the denominator
  • 5. Know the law regarding disability pay - USFSPA does not award it
  • 6. Consider income tax implications
  • 7. If you were divorced on or prior to 25 June 1981
  • 8. Avoid windfall benefits
  • 9. Consider a separation agreement.
  • 10. Don't forget SBP, life insurance, and other survivor benefits
  • 11. Keep yourself informed
  • 12. Get organized and know when to cut your losses
• One final note about records
• Summary

Chapter 16 - Legislative Environment: Reluctance and Obfuscation

• Visible legislation
• 1990 hearings
• Retroactivity finally laid to rest
• Disposable pay redefined
• Stealth legislation
• Ex-spouse gets first call on SBP
• Protection for abused military dependents and former spouses
• Prevention of circumvention of court order by waiver of (military) retired pay to enhance Civil Service retirement annuity
• Former spouse access to disability pay
• Political flak vest
• Fairness amendments
• On the legislative horizon

Chapter 17 - About the ARA

• What and where
• If you need information
• The ARA's platform
• ARA's proposals for reform of the USFSPA
• Afterthought

Chapter 18 - Restoring Fairness and Equality to the Military Divorce Process

• Why no further equity changes to the USFSPA?
• Civics 101 - Congress does not have to be consistently fair
• Read it in your military newpaper first!
• NIMBY syndrome
• Ignorance or apathy?
• The military member is not the lone ranger
• What you can do

Chapter 19 - Bits and Pieces

• When the service member might lose retired pay
• Keeping your military status current
• Disbursement of retired pay
• Pension funds to which you may be entitled
• Soldiers' and Sailor's Civil Relief Act
• Don't stir the pot
• One final thought or two

Appendix A - USFSPA, Public Law 97-252
Appendix B - McCarty v. McCarty
Appendix C - Mansell Decision
Appendix D - Barker v. Kansas
Appendix E - Unjust Taking Case
Appendix F - Treatment of Military Retired Pay
Appendix G - Public Laws Affecting Military Divorce
Appendix H - H.R. 2200, Uniformed Services Former Spouses' Protection Act Fairness Amendments
Appendix I - H.R. 2537, Uniformed Services Former Spouses' Protection Equity Act of 1997
Appendix J - Survivor Benefit Plan (SBP) Summary of Changes
Appendix K - Military/Veterans Organizations
Appendix L - Contacting Your Elected Representative
Appendix M - Checklist for Interviewing an Attorney
Appendix N - Preparing for Your Attorney: What You Both Need to Know
Appendix O - Family Law Quarterly State Divorce/Support Criteria
Appendix P - Resources

What you need to know about military divorce, how to select an attorney, and the federal law that awards up to 50% of military retirement pay to a divorced ex-spouse for life ... regardless of fault, merit, or need. Up to the minute information on legislative changes, divorce laws in the 50 states, how the USFSPA is applied in the 50 states, treatment of the Survivor's Benefit Plan in a divorce action and much, much more!

Of all the factors involved in divorce settlements, none exerts a great influence than the Uniformed Services Former Spouses' Protection Act (USFSPA). It authorizes state courts to award up to 50 percent of a uniformed servicemember's retired pay to an ex-spouse for life, and does not preclude the contemporaneous award of other support from retired pay.

You absolutely cannot afford to hire an attorney who knows less about this law than you do.

Whether single, divorced or contemplating divorce, you need to know about the 20 factors that affect military divorces and how the divorce process and retired pay are influenced by the USFSPA.

If you are a lawyer who represents uniformed personnel or are a military attorney, this book will provide information you need to better represent or advise clients in this specialized area of domestic relations law. You must be informed about the 23 changes to the USFSPA which have been made since its enactment in 1982.

Learn about the 12 controversies cited in divorce case appeals, which have created problems through as many interpretations as there are courts.

The USFSPA applies to active duty, reserve/guard, and retired military; the US Coast Guard; and members of the USPHS and the NOAA.