Transcript A PRIMER ON MILITARY DIVORCE

CROSSING THE
MILITARY MINEFIELD
A Judge’s Guide to
Military Divorce in
North Carolina
MARK SULLIVAN
Raleigh
[email protected]
“Marriage is an adventure,
like going to war”
- G.K. Chesterton
“I was married by a judge.
I should have asked for a
jury”
- Groucho Marx
“I don’t think I’ll get
married again. I’ll just find
someone I don’t like and
give them a house.”
- Lewis Grizzard
Why do I need to know this?
142,000 Reserve/Guard mobilized
as of 10/04
200,000 troops deployed in Gulf Region
NC = 3d largest military
population in the U.S.
Starting the lawsuit...
Use of Sheriff
Process server
Voluntary acceptance of
service
Starting the
lawsuit...
How to serve
HERE…
or HERE???
Starting the lawsuit...
 USE OF-Registered mail, RRR
Hague Convention
Germany
70,000 U.S. troops:
> 1st Infantry Division
> 1st Armored Division
> 21st Th. Supt. Comd.
> HQ, US Army Europe
& 7th Army
Must use Hague
Convention
Germany
Wäs ist los?
No registered mail!
-- HOT TIP! -Ich bin ein
BERLINER!
German translation -even if Defendant
doesn’t speak German!
Germany
Servicemembers Civil
Relief Act [SCRA]
Overcoming the obstacles…
Overview of the SCRA
50 U.S.C. App. 501 et seq.
Why was it passed?
What kinds of
obligations does it
cover?
PURPOSE
“Protect those who have been obliged
to drop their own affairs to take up
the burdens of the nation”
Boone v. Lightner 319 U.S. 561, 575 (1943)
LIBERAL CONSTRUCTION
“The Act should be read "with an eye
friendly to those who dropped their
affairs to answer their country's
call.”
Le Maistre v. Leffers, 333 U.S. 1, 6 (1948).
“Who’s covered by the SCRA?”
 Active duty servicemember
[SM]
 Mobilized Guard/Reserve
 Nat. Guard [Title 32,
federal emergency & funds]
 Dependents (sometimes)
DEFINITIONS §101
“Court”
Court
Administrative Agency
Whether or not of record
Resources,
Resources,
Resources
A Judge’s Guide to the
Servicemembers Civil
Relief Act
www.ncbar.com/home/lamp.htm
LAMP menu Other
Publications / Resources
“Who ya gonna call?”
Default judgments – the BIG
picture
 What is a default?
- No answer,
counterclaim
- No motions except:
“special appearance” to
contest jurisdiction
motion for extension of
time for answer
PROTECTION AGAINST DEFAULT
JUDGMENTS
 Plaintiff’s Affidavit, Certificate, etc.
Defendant not in military, and
Factual basis; or
Unable to determine status - court may require
plaintiff to bond
 Court-Appointed Attorney before entering default
Duties? Payment?
PROTECTION AGAINST DEFAULT
JUDGMENTS 50 USC App. §521
Court SHALL Stay Proceedings
Minimum 90 Days
Application of counsel or court’s own motion
When Court Determines
May be a defense that cannot be presented
w/o presence of Defendant, OR
After due diligence counsel has been unable
to contact Defendant or otherwise determine
if a meritorious defense exists
PROTECTION AGAINST DEFAULT
JUDGMENTS 50 USC App. §521
Court shall reopen
when…
SM applies on Active
Duty or within 90
days thereafter, and
shows
Material effect, plus
Meritorious defense
What is “Material
Effect”???
No single definition
Impairment of ability to
participate in civil suit due
to military duties
-ORImpairment of ability to
pay financial obligations
Cromer case
Stay of Proceedings –
50 USC App 522
Temporary delay in lawsuit till
SM can appear SM has received notice of
proceeding
Applies at any stage of
proceedings
For at least 90 days
Motion for Initial STAY
 How to apply?
What must you
show??
Stmt re Military duty
materially
affects ability
of SM to appear
+
Date when SM
can appear
AND…
Motion for Initial STAY
 How to apply? What must you
show?? [cont’d]
CO statement:
duty prevents SM’s
appearance
no leave allowed
Stay of Proceedings
 No motion or request - no
stay
 Court doesn’t have to be a
mind-reader
 Vestal case
Subsequent Stay Motion:
Inquiring into “Material Effect”
 need for a hearing
 stay is not automatic - court has discretion
 limited discovery
 no broad, conclusory statements
 Booker v. Everhart
Ways to handle stay requests
Move ahead on uncontested claims
Examine stages of case for ones which
can go forward-answering complaint
mandatory disclosure
financial affidavit
discovery, etc.
Ways to handle stay requests
 Is presence of SM
required?
 Use of telephone…
 Or videoteleconference…
 Or Internet?
Ways to handle stay requests
Use of military leave?
How much leave was requested?
No leave usually available for training
programs
Length of the Stay
“For such period as is just”
Up to rest of term of service?
For the duration of the “material effect”?
 For the lifetime of the presiding judge?
Ways to handle stay requests
 Due diligence
 Good faith
 Judkins case
When one parent is
mobilized…
 Will garnishment
continue?
 What about rent
(eviction?) or
mortgage payments
(foreclosure?)
 Let’s see how this
works…
“HELP! What happened to my
child support?”
“That’s the ol’ ball game!”
Left his job
Dad was mobilized
Garnishment stopped!
Foreclosure, eviction? [Use §536!]
Deployment Child
Support Issues
 Restarting the
garnishment
 Same amount?
 Where send the
notice & motion?
Locating, AND
Serving the other
side!
Deployment Child
Support Issues
 Problems, questions…
for the SM:
 “Should I move for a
STAY?”
 “I want to request child
support reduction -- How
can I participate?”
Deployment Custody Issues
 Mom has custody of
Debbie
 Gets orders to Kuwait
[unaccompanied!]
 ???? Options ????
Give Debbie to
neighbors?
Grandparents?
What about to
D.A.D??
What if dad files for
custody? Use SCRA?
Family Law
Paternity
a civil court matter
need for determination of paternity
Child support
“interim support” when no order
need for court order
Military Pay:
Components of compensation:
BP = Base Pay
BAH = Basic Allowance for Housing
BAS = Basic Allowance for Subsistence
Special pay for airborne troops, doctors,
divers, combat zone, etc.
The LES
“LES” = Leave and Earnings Statement
Invaluable resource for the court:
All pay and allowances shown
Accrued leave
State for income tax w/h
Date for entry on active duty
Current rank, years of service
How do you read an LES?
-- HOT TIP! -How to read an LES,
OR
“Through the pay statement
jungle with gun and camera!”
Leave-and-Earning Statement
Base Pay + BAS + BAH
= Total Entitlements
What’s
this for…
a car?
Discretionary
Allotments
Used and
unused
LEAVE
West
Virginia
State of
Residence for
Tax Purposes
Number of
Exemptions
Total Income
= $6,091.86
Taxable Wages
= $4,566.60
Difference
= $1,525.26
= BAS, BAH
What about child support?
“SHE WIPED AWAY HER TEARS
WITH MY CHECKBOOK”
Setting Child $upport
 How to set child support
amount
 Amounts to be considered
 Grossing up the BAH, BAS
Setting Child $upport
Free treatment at
military med. facilities
Medical coverage:
TRICARE
DEERS enrollment
Medical expenses
Setting Your Sights on
Enforcement
 Garnishment
 Involuntary
allotment
Can a Servicemember
Win Custody?
 Negative aspects of
military service
 Positive aspects
DODDS - Dept. of Defense
Dependent Schools
Youth activities programs
Day care facilities
Travel = learning and
enrichment
Visitation in Military Cases
 Setting a visitation
schedule
Local and…
Long-distance
 “Help! He’s kidnapped
my baby!” DoD Dir.
5525.9
Don’t take things
at face value!
Examine
jurisdictional
basis for
divorce
Jurisdiction for Domestic
Cases
Where can I file for divorce?
My “home of record”?
Where I’m stationed?
My legal residence?
My spouse’s legal residence?
Jurisdiction for Domestic
Cases
 Where can I file for divorce?
My legal residence
My spouse’s legal residence
[Williams v. NC, US Supreme Ct., 1945]
Basic training in divorce…
 G.S. 50-18: fact or illusion?
 Statute appears to say that SM
stationed here for 6 months can file for
divorce in NC
Basic training in divorce…
 But see Martin, 118 SE2d 29 (NC ‘61)
Mere presence not enough
Domicile required
Statute really means that living on base is
OK for domicile [if other aspects are also
there]
 Effects of divorce on military
entitlements
Resources,
Resources,
Resources
 ABA FAMILY LAW SECTION’S MILITARY COMMITTEE:
www.abanet.org/family/military/
 DFAS WEBSITE: www.dod.mil/dfas
Target Practice!
Setting Your Sights on the Military Pension…
"The Bounty after the Mutiny"
THE LARGEST ASSETS in many marriages:
PEN
SION
BUT IN MANY MILITARY MARRIAGES...
PEN
SION
Military Retirement Benefits
Defined benefit plan = pension
Defined contribution plan = TSP [Thrift
Savings Plan]
Source: Uniformed Services Former
Spouses’ Protection Act [USFSPA], 10 USC
1408
-- HOT TIP! --
QDRO
FORGET LONG-ARM STATUTES...
THROW AWAY INTERNATIONAL SHOE
FEDERAL
JURISDICTIONAL LIMITS:
10 USC 1408(c)(4)
PENSION JURISDICTION
IS LIMITED TO:
• Domicile
• Consent
• Residence not due to
military assignment
• [Forum-shopping!]
YIELD
How Much Money?
Divide disposable
retired pay, not
gross
Not more than 50%
of DRP in general
Tricks & Traps
Waiver of retired pay for VA disability pay
USFSPA says you cannot divide VA disability
pay as property -- it’s exempt!
VA payments are tax-free
When VA election comes AFTER divorce…
White v. White (reconfigure the prop. div’n.)
Merger of military service into fed. civil
service for retirement
... for those left behind:
SURVIVOR BENEFIT PLAN (SBP)
S.B.P. = Single Biggest Problem
SBP Overview [10 USC 1447]
Joint & survivor annuity at SM's death
55% of SM's retired pay base amount
Court can order SBP coverage
Without it, pension ends at SM's death
SBP Overview [cont’d]
 Premiums –
come from retiree’s paycheck
come “off the top” before DRP, taxes
 No “health qualification” of H or W
 Income for life of spouse, tax-free
 Inflation-proof
SBP Overview [cont’d]
 CAUTIONS:
MRS. SMITH: Don’t leave home without it!
MRS. SMITH: Apply within 1 year of SBP order!
 “FORMER SPOUSE” DESIGNATION:
SGT SMITH: “Unitary” - can’t split between EX &
current spouse
SGT SMITH: Who pays for it? YOU BOTH do… DFAS
won’t allocate premiums
"20-20-20 RULE" – Former
Spouse Medical Coverage
20 YRS OF MARRIAGE +
20 YRS OF CREDITABLE SVC +
20-YR OVERLAP
= FREE MILITARY MEDICAL
COVERAGE
ENFORCEMENT -Pension Payments
 Rules, addresses,
phone numbers
 Sample pension div’n
order - ATCH
 Pension division
checklist - ATCH
 “10-year rule”
Know your resources
Army JAG School home page:
www.jagcnet.army.mil/tjaglcs
[JA 260, SSCRA Guide, and
JA 274, USFSPA Guide]
The End