You don’t need to practice near a military base to have military law issues impact your clients. The issues are not limited to cases involving active-duty members. Even practitioners who intend to pass the cases with military issues to more knowledgeable colleagues need some basic background information in order to spot the cases that may require more expertise. As well, practitioners may also discover that substantial guidance is available to those who know where to look. The fact that a case involves a servicemember or their spouse or child need not always mean a practitioner will be out of their depth.
A case commonly begins with the service of process in some fashion, and that’s one of the occasions where the Servicemembers Civil Relief Act (SCRA) can come into play. John S. Odom, Jr. has written “Highlights of the Servicemembers Civil Relief Act for Family Law Practitioners.” One of the country’s foremost authorities on the SCRA provides an informative overview of the statute and the sections most often encountered in family law proceedings where a client is a servicemember. He warns that many family lawyers are not aware of the important technicalities of the Act.
The most carefully crafted parenting plan in the world can be thrown into disarray if one of the parents is facing a military deployment. Phillip J. Tucker writes “What You Need to Know about the Deployed Parents Custody and Visitation Act and Why.” He notes that 14 states have enacted the Uniform Deployed Parents Custody and Visitation Act (UDPCVA), which seeks to protect military parents who are deployed by addressing issues of child custody and visitation that arise due to their deployment, and many other states have some variations of the Act. The article encourages family lawyers to gain a working knowledge of what their particular state’s law surrounding this issue allows so we’re ready to better serve our military family clients.
In “The Military Blended Retirement System: What Every Servicemember and Lawyer Must Know,” Marshal S. Willick explains the four major components of the recent major overhaul to retired servicemembers’ total pension benefits called the “Blended Retirement” plan: a Defined Benefit, a Defined Contribution, Continuation Pay, and Elective Lump Sum of the Defined Benefit.
When a servicemember makes the ultimate sacrifice, one of the mechanisms in place to provide for surviving family members is the Survivor Benefit Plan (SBP). Kumudha Kumarachandran provides tips on “Navigating the Survivor Benefit Plan” from beneficiaries, cost, coverage, and duration and a similar plan for surviving family members of the National Guard and Reservists called the Reserve Component Survivor Benefit Plan (RCSBP).
“Domestic Violence and the Military” is addressed by Steven P. Shewmaker and Patricia D. Shewmaker. They note that the Department of Defense recognizes that domestic violence is an acute issue in the military, in part due to the high rates of stress, PTSD, and substance misuse and frequent upheaval of military families’ lives due to decades of deployment in multiple conflicts. The authors outline what mechanisms are already in place to protect victims and hold abusers accountable and revisions currently before Congress to revamp the Uniform Code of Military Justice (UCMJ) that are expected to pass later this year and take effect in 2023.
The distinction between military retirement benefits and disability pay has been a trap for the unwary for decades. In “Chapter 61 Disability Retired Pay: Once Untouchable, Now Back in Play,” Brent Tanner gives the background on how the 2017 Supreme Court decision in Howell v. Howell has turned with the March 2022 Defense Office of Hearings and Appeals (DOHA) decision ruling that receipt of Concurrent Retirement and Disability Pay (CRDP) is considered disposable retired pay under federal law. He notes that for military divorce cases going forward, it is so essential that the attorney for the former spouse insist on a clause or provision that awards the marital share of the military retirement to the former spouse that failing to do so risks a malpractice claim.
Health care coverage, including who has it and who can use it, is a key issue in most family law cases. Wm. John Camp focuses on how family law practitioners can help their clients undergoing a divorce from a servicemember secure health care coverage in his article “Gateways to Former Spouse Post-Divorce Health Care Options.” He emphasizes the necessity of taking action within the first 60 days of a divorce from a servicemember before the window of opportunity for enrollment for military health care coverage closes.
When dealing with a military divorce, survivor benefits may be an important component. As well, the benefits a spouse thought they had secured may not actually be in place if the property steps have not been completed. Kris Hilscher has written “Lost Military Survivor Benefits? CYA (Complete Your Application).” When representing a former spouse of a servicemember, the Mississippi case of Williams v. Williams demonstrates that specific reference to survivor benefits in the divorce decree and meeting the deadline to file a claim for the SBP of the service member are imperative.
John E. Kirchner has written “Working with the Defense Finance and Accounting Service,” which provides a helpful overview of the Defense Finance and Accounting Service (DFAS) requirements involved in military divorce, from the collection of child support, spousal support, or property division of retired pay. He shares how properly worded court orders and an understanding of the military system are key.
In “The Interplay Between Military Retirements and the Federal Employee Retirements,” Brent Tanner explains the difference between the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS). Not understanding the distinction and failing to draft precise language in a divorce can lead a former spouse to lose what would have been a divisible asset.
Captains Anthony Kratz and David Liu describe the legal services the Army provides, including at legal assistance offices (LAOs) located around the world, and the controlling Army regulation for family law matters in their article, “The Army’s Family Law Program.” They explain that legal services range from basic estate planning to family law matters such as separation, divorce, domestic violence and/or sexual assault, and child custody situations involving a soldier.
In “Family Support in Military Divorce,” Kaitlin Kober discusses the detailed regulations that in each branch of the military that govern support requirements. This is critical information for families when going through a divorce. She cautions that it is important to review the regulations carefully when advising your client and that these regulations are meant to be temporary and only used in the absence of an agreement or court order.