2. Pending U.S. Supreme Court case re: disability payments

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1 Kristin R. H. Kirkner, Esquire Kirkner Family Law Group, P.A. Board Certified Specialist in Marital & Family Law 707 W. Swann Avenue Tampa, FL Phone: (813) major changes: 1. Definition of disposable pay 2. Pending U.S. Supreme Court case re: disability payments 3. New retirement system 1

2 Amended definition of disposable pay as defined in Uniformed Services Former Spouses Protection Act (USFSPA) Limited to: Basic pay Payable for grade and years at the time of the court order Increased by COLA granted to retirees from date of divorce to date of retirement The language we have been using in settlement agreements and final judgments will no longer be accepted by DFAS! Language for Active Duty Hypothetical: The Former Spouse is awarded % of the disposable military retired pay the member would have received had the member retired with a retired base pay (High-3) of and with years of creditable service on. On the date of the decree of divorce, dissolution, annulment or legal separation, (list date) the member s military retired pay base (high-3) was and the member had (years and months) of creditable service. 2

3 Practical Solutions: Stop using your old template language Review sample language on DFAS.mil If you have a Final Judgment entered after December 23, 2016 that has not been submitted to DFAS, get a clarifying order to correct the language before submitting to DFAS Pending U.S. Supreme Court case out of Arizona Parties divorced in 1991 Former Wife was awarded her portion of the disposable retired pay After the dissolution was final, the Former Husband applied for disability Former Husband had to waive a portion of retired pay to receive disability pay Wife sued to receive her entire portion of the retired pay 3

4 Retiree Gross retired Pay 2000 Spouse Waived Retired pay (400) Disposable Retired Pay 1600 Division of Disposable Retired Pay Taxes (100) (100) VA Pay (non-tax) Total to Each Party after waiver Mansell v. Mansell, 490 U.S. 581 (1989), U.S. Supreme Court Holding: the language of 10 U.S.C. 1408(c)(I) preempts states from dividing the value of the waived military retired pay because it is not "disposable retired pay" as defined by the statute. Mansell waived his retirement before the dissolution of marriage, Howell deals with a waiver after the dissolution Fondrenv. Fondren, 605 So.2d 571( Fla. 2dDCA 1992) No part of pension received due to disability can be considered marital property subject to distribution. Abernethy v. Fishkin, 699 So.2d 235 (Fla. 1997) USFSPA precludes division of disability benefits, but does not preclude the trial court from enforcing parties settlement agreement awarding non-military spouse a portion of retirement. Also approves indemnification provisions. 4

5 Practical Solutions: Establish disability before dissolution proceedings Include indemnification language in MSA Nominal alimony $ for $ reduction of alimony for retired pay actually received BRS goes into effect January 1, 2018 Smaller pension but added defined benefit contribution to the Thrift Savings Plan (TSP) Receive some retirement benefit with less than 20 years of service Everyone serving as of December 31, 2017 will be grandfathered into the old system (lifetime monthly payments after 20 yrs of service) Members with fewer than 12 years of service can opt in to the new retirement plan 5

6 = 2% x final pay x years of service (presently 2.5%) Payment Options: 1. Monthly pension payment 2. Lump sum + smaller payments until full social security 3. Larger lump sum + no payments until social security Military contributes 1% of base pay to TSP Enrollment in TSP is automatic at 3% (can be changed by the member) Military will match 5% of TSP contribution after 2 years 6

7 TSP divided in every case Divide benefits even in short term marriages Use QDRO to transfer to spouse and cash out to pay debt Jurisdiction SCRA and stay Parenting Issues specific to military Chain of Command Interim Family Support Non-taxed income Leave (vacation days) as an asset Not Securing the Retirement (SBP/life insurance) 7

8 Subject Matter dissolve the marriage 6 month residence Fla Stat home of record Personal support and equitable division long arm jurisdiction must plead USFSPA retirement UCCJEA children In order to divide retired pay, the Court must have jurisdiction over the member based on one of the following: a) Domicile in the territorial jurisdiction of the court, or b) Residencewithin the state other than because of military assignment, or c) Consent to jurisdiction. (1) A general appearance constitutes "consent"; the member need not specifically consent to jurisdiction to divide the pension. See, e.g., Kildeav. Kildea, 420 N.W.2d 391 (Wis. Ct. App. 1988). (2) Continuing jurisdiction may also constitute "consent." 8

9 Military member s SSN (addendum may be accepted) The parties were married for a period of ten (10) years or more during which the Petitioner/Respondent served at least ten (10) years of creditable service. The military member s rights under the Servicemembers Civil Relief Act, 50 USC App and have been observed and honored This Court has jurisdiction over the military member by reason of (choose one) (A) his or her residence, other than because of military assignment, in the territorial jurisdiction of the Court, during the proceeding, (B) his or her domicile in the territorial jurisdiction of the court during the proceeding, or (C) his or her consent to the jurisdiction of the Court. 9

10 Downloads at Submit application form (DD2293) and certified copy of court order to the designated agent Designated Agent will notify approval or disapproval within 30 days 90 day period shall be granted Servicemember sduty materially affects his/her participation in proceedings Must be requested not automatic Attach affidavit from service member Letter from commander Can be done through Power of Attorney No final judgment after default on service member Appoint an attorney ad litem Proceed without default 10

11 Timesharing during deployment Florida Statute applies when parent will be gone 90 days or more Designate in writing Non-deploying parent has burden to object (only on basis of child s best interest) 10 working days before departure Relocation (Fla. Stat ) Long Distance Contact Service Family Support Use sparingly and as a last resort Best done through counsel Contact base operator 11

12 Each branch has their own regulations that dictate what type of support the member must provide Army and Marine regulations criminalize the failure to pay support at a level generally equivalent to a member's authorized BAH. All other services have established "guidelines" for use by the commander where there is no court order or support agreement to enforce these regulations, contact the member s superior officer Navy and Marine Corps --32 CFR 733 Army 32 CFR 584 Air Force 32 CFR

13 Can sell back 60 days at end of service Sold at base pay only Look at what was earned during the marriage (in a short term marriage) Survivor Benefit Plan Parties share in premium Costs about 6.2% Locked in once selected (can t cancel or opt out) Administered automatically once designation is made Must be deducted from the member s retired pay and is essentially prorated between the parties Continues for the lifetime of the insured no medical exam Beneficiary not eligible if remarried before age 55 Life Insurance One party usually pays the entire premium Lower cost Must be insurable One person owns the policy Cost goes away if spouse dies before service member Payment in lump sum to beneficiary at death 13

14 If SBP is not addressed, then the service member does not have to elect coverage MUST submit request within one year of the entry of the order dividing military retirement (DD Form ) Pension Division Language for MSA Qualified Military Order Submission to DFAS Testimony about pension division calculation SBP cost and benefits Correcting past mistakes and navigating the process 14

15 Kristin Kirkner, Esquire (813)