Facts or Fiction Military Divorce
FACTS OR FICTION: MILITARY DIVORCE & MILITARY PENSION DIVISION
CANNON & ASSOCIATES is dedicated to Fierce Advocacy for service members and non-military spouses seeking a military divorce in Oklahoma. Military divorces are especially complex due to the issues related to military life and the protections afforded to service members. Founder, John Cannon, is a serving Judge Advocate in the Oklahoma National Guard and has helped hundreds of service members and non-military spouses through the process of seeking a military divorce. This page explains important facts concerning military divorce and division of military pension or retirement. Additionally, this page clarifies some of the most common fictions concerning military divorce and the division of military retirement.
You should contact an experienced Oklahoma Military Family Law Attorney, if you are a service member facing divorce. Many hazards exist with military families considering divorce. The dangers primary concern division of marital property, the property location/jurisdiction for divorce, military retirement and disability pay, as well as child custody. Your interests demand you contact a military family law attorney that understands the unique issues and challenges associated with military divorce and family law issues.
Whether you or your family member is serving at Tinker AFB, Ft. Sill, Vance AFB, Altus AFB, McAlester Army Ammunition Army Base; a Reservists; or a National Guardsmen; CANNON & ASSOCIATES has been there before with clients facing Oklahoma military divorce or division of military pension and can help you.
FACT OR FICTION IN MILITARY DIVORCES
Clients and lawyers make costly mistakes far too often in military divorces. Oftentimes, these mistakes in military divorces are based on a client or lawyer taking fiction as fact based upon “barracks lawyers” or a divorce attorney being unaware of the protections provided to service members and the rules of military retirement division. Judge Advocate John Cannon is a Fierce Advocate for every client, especially service members and their families when facing military divorce or division of military pension or retirement.
MISTAKES AT THE START OF THE CASE
FICTION: You can sue for military divorce in any state in order to target military pension division, false. The military pension and military retirement must be sought in the service member’s state of legal residence, unless they waive this protection.
FACT #1: Your chosen military divorce lawyer should sue in the state of the service member’s legal residence. The legal resident state or “domicile” of the service member guarantees your access to seeking division of military retirement or military pension.
Federal law governs military pension division; specifically the Uniformed Services Former Spouses’ Protection Act (“USFSPA”). This federal law dictates, you can always obtain military retirement division in the service member’s state of domicile. Seeking division of military pension or retirement in a military divorce in any other state is risky and may result in your inability to divide the pension.
Your chosen military divorce lawyer should be well versed in the protections afforded to service members or their spouses under state law. In Oklahoma, the law provides protections to both service members and their spouses in contested military divorce actions. Not all state court rules on military pension division are the same. Service members, to some extent, have the ability to select the forum for their military divorce. It is important you exercise your rights to seek or protect military benefits.
FACT #2: Speak to a qualified military divorce lawyer before you file anything in court. Your answer to a pension division may result in your being forced to resolve your military divorce in that jurisdiction. Filing an answer to a petition for division of a military pension may result in your granting consent to the court’s jurisdiction. You must file an objection at the start of your case in order to protect your jurisdictional claim on this issue. However, you may be forced to proceed with your military divorce in two jurisdictions for a period of time, until a decision on jurisdiction is made by the court.
CAN YOU PAUSE A MILITARY DIVORCE PROCEEDING?
Possibly, the Servicemembers Civil Relief Act (“SCRA”) is a federal law that allows the SM to obtain a stay of proceedings, much like a continuance. A stay on proceedings will allow you to stop the military divorce case from moving forward for a period of time. When military duty requires you to be outside of the jurisdiction or unable to appear in court, the SCRA and your military divorce attorney can stay the proceedings for a period of time.
FACT #3: The SCRA provides a necessary stay of military divorce proceedings when needed. Service members may receive consequences for abusing this privilege. An initial SCRA stay of military divorce proceedings requires a notice to the court hearing the case. The statement must indicate the service member’s military duties prevent him or her from currently participating in the military divorce. Additionally, the statement to the court must be accompanied by a statement from the service member’s commanding officer, which indicates his or her military duties prevent him or her from appearing and answering the military divorce action and his or her leave is not granted.
Subsequent SCRA stays may be granted with sufficient and specific information provided by you or your military divorce attorney. It is important you or your military divorce attorney articulate how your responding to the lawsuit or leaving duty/training will have a negative impact on your military training or service obligation. Courts deny SCRA stays, sanction or punish service members that mischaracterize their inability to appear in court for a military divorce action. Specifically, jurisdictions in Oklahoma with military bases, including: Oklahoma County with Tinker Air Force Base; Comanche County with Fort Sill; Garfield County with Vance Air Force Base; Pittsburg County with the Mcalester Army Ammunition Plant; or Jackson County with Altus Air Force Base.
HALF THE MILITARY PENSION?
FICTION: Some divorce attorneys or service members believe a non-service member spouse is entitled to half of the service members’ retirement, VA benefits, or military pension simply by marrying a service member, fiction.
FACT #4: The spouse of a service member, the non-service member spouse, is entitled to a “marital share”, not “half the military pension.” However, if the service member and non-service member spouse have been married for the entire military career, the non-service member spouse may be entitled to half the military pension or military retirement.
It is much more difficult to recover half of a military pension then accurately dividing the “marital share.” The marital share is the benefits/retirement points acquired during marriage and overlapping military service. A non-service member should only receive a portion of military retirement, while married and the service member spouse is receiving points towards military retirement. It is crucial you hire a military divorce attorney to ensure your future and portion of retirement is protected.
WHO GETS SURVIVOR BENEFIT PLAN?
FICTION: Some divorce attorneys or service members believe a surviving former spouse automatically receives the survivor benefit plan; however, that is not true.
FACT #5: Ignorance of the SBP (Survivor Benefit Plan) can cost you thousands of dollars.
A military divorce settlement or divorce decree should specific who receives the SBP. Typically, this is awarded to the non-military spouse, especially, if the marriage lasted for a substantial period of military service. In some cases, a former spouse will forfeit the SBP for another benefit, i.e. life insurance, which would allow the service member to retain the benefit for a future spouse.
SBP coverage provides the non-military spouse with 55% of the service member’s base military pension for the rest of their life, which is a huge benefit to a non-service member. Without SBP, a surviving spouse receives no military pension or military retirement compensation beyond the service member’s death. Without a court order concerning SBP, which is submitted to DFAS for military recording; it is the same as no agreement or court order. A military divorce attorney can help you ensure these benefits are recorded and received.
FICTION: My SBP rights are protected as long as the court order says so, fiction. You must submit the SBP court order to DFAS within the necessary time frame in order to receive the benefits.
FACT #6: You must meet one of two SBP deadlines.
One deadline applies if the service member submits the court order, which is one year following the military divorce decree being entered. The other deadline applies to the non-service member spouse submitting the court order for SBP coverage. When a non-service member spouse submits the SBP coverage order it must be within one year of the court order, not the military divorce decree. The non-service member’s DFAS request must include a “deemed election” request letter. “Former spouse” coverage must be specified in the order; naming the spouse is not enough for SBP beneficiary. Your chosen military divorce attorney must be familiar with this rule and ensure it is followed to protect your benefits.
FICTION: The timeline of my military divorce doesn’t affect my benefits, fiction. More deadlines exist than the SBP deadlines listed above. One of the most important is medical coverage for the former spouse of a military service member. Early retirement or rushing a military divorce can take away the non-service member’s medical benefits.
FACT #7: Don’t rush your military divorce or military retirement.
A former spouse is entitled to TRICARE and military medical treatment, if the 20-20-20 medical rule is met: military service of at least 20 years; a marriage that has lasted at least 20 years; and an overlap of the two for at least 20 years. TRICARE and military medical care are available when these conditions exist. It is a benefit to the non-service member with no expense to the service member spouse. In fact, it may save the service member spouse support alimony, if medical coverage is provided. Once this benefit is official with DFAS, the service member spouse does not have to do anything and the benefit will automatically be provided.
FACT #8: Garnishment attaches at ten years of marriage and military service overlap.
DFAS will send a check to the former non-service member spouse, out of the service member’s retirement pension as a garnishment, if the parties were married for ten years of good military service prior to divorce. DFAS garnishes and automatically sends out two checks after military divorce with appropriate tax withholdings. When the 10-10 DFAS rule is not met the non-service member spouse must look to the retiree for direct payment. However, the 10-10 overlap is not necessary for child support or alimony garnishment.
FACT #9: There is no time requirement for divisibility of the military pension.
Although the 10-10 rule is required in order for DFAS to garnish and directly provide pension payments; no time minimum exists to receive the benefit. A 10-10 overlap of marriage and military service means that the payment will come from DFAS if you serve the court order. Eligibility for a portion of military pension payment is automatic after any period of marriage; however, the amount of pension to the non-military spouse is dependent upon length of marriage and service.
DETAILS IN DIVORCE DECREE MATTER
FACT #10: There is not a specific share under federal law for the military spouse or non-military spouse.
Federal law makes military pension division available; however, state law dictates the requirements and process.
FACT #11: Disposable retired pay is often less than gross retired pay.
Gross military retired pay includes all entitlements for the retiree. Disposable Retired Pay (“DRP”) is a technical term which excludes medical retired pay, VA disability compensation, the SBP premium and Combat-Related Special Compensation. Receiving only a portion of DRP will greatly reduce the amount of support provided after a military divorce. In some cases, this difference will cost a client thousands of dollars.
FACT #12: A set dollar amount in the court order leaves the Cost-Of-Living-Adjustments (COLAs) to the retiree. In court orders included a set dollar amount the non-service member spouse does not receive any of the upward adjustments that are given for inflation and other benefits. However, percentage or formula division allows for sharing of the COLA between parties to a military divorce.
FACT #13: Military pension division requires a specialist.
You can have a military divorce attorney handle your military divorce. However, he or she can retain a specialist co-counsel to help with the military pension division. Currently serving Judge Advocates can assist you for free in drafting the military pension division order to protect everyone’s interests. Additionally, John Cannon is a currently serving Judge Advocate and versed in these issues. Legal assistance attorneys on base, such as Ft. Sill, Tinker AFB, Vance, AFB, Altus AFB, or McAlester Army Ammunition Plant are a great resource; however, they cannot appear at a contested court proceeding on your behalf.
FACT #14: Your military divorce attorney should submit your DFAS pension papers.
Competent representation in a military divorce action includes ensuring DFAS receives and accepts the court order designating division of the military pension, including: a military pension division order; DFAS Form 2293; and your court orders. It is very important to do this quickly to ensure you have time to correct any issue identified by DFAS.
PROBLEMS WITH SBP
FICTION: I can divide my SBP to multiple spouses or beneficiaries, false.
FACT #15: The SBP cannot be divided.
SBP can be waived, but it cannot be divided between multiple spouses, i.e. your current and former spouse.
FACT #16: SBP is not good if the former spouse remarries before age 55.
SBP coverage is not available when the former spouse marries before the age of 55; however, it can be reinstated, if that person’s new spouse dies or the marriage ends in a divorce or annulment.
FACT #17: An SGLI election is not enforceable against the military member spouse. The United States Supreme Court has ruled no service member can be compelled to elect a former spouse for SGLI.
FACT #18: DFAS won’t distribute SBP premiums between the parties. SBP premiums come “off the top” by law. They are deducted from gross pay to determine the Disposable Retired Pay. DRP is what DFAS divides as DFAS cannot apportion the SBP premium or 6.5% of the selected base amount, between the spouses.
FACT #19: The premium for SBP coverage is 6.5% of the selected base amount, which can be the service member’s entire retirement pay. The court order must specific what the base amount or DFAS will elect the full retired pay as the default. In order to protect against this, your military family law attorney must change the selection to the lower base amount for the SBP.
CAN I LOSE MONEY IN THIS PROCESS?
Yes, a common mistake for non-military former spouses is not knowing the VA waiver rules, which allow a retiree to waive a portion of military pension to receive VA disability compensation. All retiree service members may waive a portion of their pension, if he or she has a service connected disability. The money is not taxable and is not divisible.
FACT #20: An indemnification agreement can protect a former spouse from VA waiver. For a non-military spouse, a VA waiver can greatly reduce the benefits received from the Department of Veterans Affairs or DFAS. It is important to have a waiver clause in the military divorce decree or agreement, which requires the service member to repay any amount lost to the non-service member spouse, if disability compensation is taken from the pension.
FACT #21: You cannot forget to address the Thrift Savings Plan (“TSP”). Military members have multiple retirement assets, including TSP. The TSP account is similar to 401(k) or IRA. As you contribute the increase in value of the TSP grows tax free and may be used during retirement. Under Oklahoma law, the increase to this account during marriage is marital or community property and divisible.
FACT #22: You can seek a buyout of your share of a military pension.
You or your military divorce attorney can negotiate an exchange or buyout to compensate for the value of your share of military pension or retirement. Even a marriage that only lasts a few years may result in thousands of dollars of retirement compensation for the non-military member.
HOW DOES A PENSION BUYOUT WORK?
The service member spouse will have to pay an equivalent amount of compensation to not divide his or her military pension. As the non-military member spouse, you or your military divorce attorney must negotiate a fair trade. Ensure your military divorce attorney does a calculation that is fair to you.
CONCLUSION: MILITARY DIVORCE
When facing a military divorce or division of military retirement you should know what is Fact and what is Fiction.
Experience matters when you are facing military divorce as a service member or spouse to a service member. It is important to know the family law attorney you hire knows military family law. John Cannon, owner of CANNON & ASSOCIATES, is a Judge Advocate and experienced in military family law issues and protections. He will personally represent you and work along-side you during the entire process. John has the experience you need and will bring it to bear in your case.
Additionally, John Cannon has an outstanding record of reaching the best possible outcome for hundreds of clients, evidenced by receiving the highest possible AVVO rating – 10 (superb). Contact CANNON & ASSOCIATES, PLLC to protect your rights and Fight your Oklahoma military divorce or military pension division. You may send an email inquiry, complete the contact form on our website, or call at (405) 657-2323 for a free confidential consultation.
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