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How to Represent Military Personnel and Their Families in Divorce

Joseph A. DeWoskin

Not all clients are the same, and military clients and the issues that accompany them are unique. Learning how to address these unique issues and how to interact with your military clients takes experience, the ability to research, and patience. Servicemembers’ issues include, but are not limited to, those involving family support, parenting, long-distance parenting time, deployment, and permanent change of station or moving to a new duty station. If you are going to represent a servicemember or the spouse of one, it is important to fully understand what the military branches require of servicemembers, the income of servicemembers, and the terms that servicemembers use. Military regulations, statutes, and explanations of how best to approach are all online and available for self-study. That being said, this area of practice is ripe for error and misunderstanding, especially when it comes to advising clients and dividing military retirement benefits as a marital asset.

Military Families in Divorce

Military Families in Divorce

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Service Regulations for Support in the Absence of a Court Order

Each branch of the military has its own regulation that addresses family support and support of the servicemember’s family. The regulation, however, is not a substitute for a court order; it is to be used in lieu of a court order. Court orders will replace the service regulations. All branch regulations, except the Air Force’s, authorize commanders to impose sanctions that can range from negative counseling, to non-judicial punishment, to court-martial.

Army (AR 608-99, Family Support, Child Custody, and Paternity). Soldiers are under an obligation to follow the requirement of this punitive regulation. Failure to follow the regulation can result in the soldier’s being punished for failure to properly support his or her family members. Commanders are ultimately responsible for ensuring that the soldier follows the regulation.

The Army uses a formula to determine how much support a soldier should provide to family members. The formula can be found in the Army regulation, which is available on the Internet. There is no requirement to provide support to a family member who is living in government family housing because the family has free housing. Once the family is no longer living in government family housing, the requirements of family support under AR 608-99 take effect. The regulation also addresses financial support required if the soldier is married to another military member or if there are multiple family units (a prior marriage or child from another relationship and the current one).

Navy (MILPERSMAN 1754-030, Support of Family Members). The Navy is adamant that it will not be a haven for personnel who disregard or evade financial obligations to their legal family members. The requirement for support states that each sailor has an inherent natural, moral, and legal obligation to support legal family members. As with the Army, the Navy provides the type of support that is required in the absence of a court order or agreement. Unlike the Army, however, the Navy has a chart to determine how much support will be provided. It is important to point out that gross pay, for the purposes of support under the chart, includes base pay and Basic Allowance for Housing (BAH) only. The chart is available online.

Sailors who fail to provide continuous and adequate support to their family members may lose the BAH at the “with dependents” rate. The sailor may also receive adverse evaluations or fitness reports, receive written counseling, and ultimately may be administratively separated. Commanders are required to recover BAH for those periods of time that support was not provided or when the support was inadequate.

Marine Corps (U.S. Marine Corps P5800.16a, Marine Corps Manual for Legal Administration, Ch. 15, Dependent Support and Paternity). As with the Navy, the Marine Corps specifically states that it will not serve as a haven for Marines who fail to provide adequate and continuous support to their family members. Like the Navy, the Marine Corps has a chart that provides how much a Marine should pay in support, absent a court order. The Marine is required to pay the greater of either the fixed amount of support for the requesting family member or the fraction of the BAH or Overseas Housing Allowance (OHA) based on the total number of eligible family members. Under no circumstances will the total amount of support exceed one-third of the Marine’s gross pay. The chart is also available online.

If a Marine fails to provide continuous and adequate support, there may be a loss of entitlement to the housing allowance at the “with dependents” rate, and the Marine may be subject to administrative and disciplinary action, including punishment under the Uniform Code of Military Justice.

Air Force (AF Instruction 36-2906 § 3.1.2, Personal Financial Responsibility). The Air Force takes a different approach to requiring Airmen to provide support to their family. While members of the Air Force are expected to provide adequate financial support to family members, a commander is not authorized to provide sanctions or issue an order directing the Airman to provide support. The amount of support to be provided to the family members should be based on the Airman’s ability to pay. Support may be “in kind,” such as paying a mortgage, car payments, joint debts, or providing food, etc. If a member of the Air Force does not provide support and receives BAH at the “with dependent” rate based on dependents that the member refuses to support, then the BAH will be terminated, and the Air Force will recoup the BAH.

Coast Guard (U.S. Department of Homeland Security, U.S. Coast Guard Commandant Instruction M1600.2, Ch. 2.E., Support of Dependents). The Coast Guard expects all members to conduct their personal affairs in an honorable and lawful manner. It will not be a haven or refuge for personnel who disregard or evade their obligations to their families. As such, the Coast Guard regulation states that every person has an inherent natural and moral obligation to support his or her dependents. As always, there is a preference to establish support by mutual agreement. However, if an agreement is not able to be reached and there is no court order, the Coast Guard follows a chart that is intended to provide for reasonably equitable levels of support for dependents until such time as an agreement is reached or a court issues an order. The support requirements contained in the chart is a minimum amount of support that should be provided. The chart is also available online.

BAH and BAS When Calculating Child Support

Basic Allowing for Housing (BAH) and Basic Allowance for Subsistence (BAS) are both tax-free benefits that servicemembers receive as part of their overall pay. They are reflected on the servicemember’s Leave and Earnings Statement (LES). The BAH and BAS are used to determine overall income and go into the computation for child support in most states’ calculations.

Interim Support Regulations, Support Enforcement, and Garnishments

If your client does not have a court order and is not getting support, you can still attempt to obtain support by reaching out to the servicemember’s command and making a specific request. Remember that without a court order, a military commander is limited by the service regulation in ordering support payments to take place. Even if a servicemember is ordered to provide support, voluntary allotments are only of a temporary nature and can be stopped by the servicemember.

Legal references. There are primarily two places to look for enforcement of support orders. The law is found at 42 U.S.C. § 659 (implementing regulation can be found at 5 C.F.R. Part 581). When implementing child support orders, the Consumer Credit Protection Act, 15 U.S.C. § 1673, needs to be followed.

Definitions. The definitions of child support and alimony can both be found in 42 U.S.C. § 659. Child support is defined as an amount required to be paid for the support and maintenance of a child under a judgment, decree, or order, whether temporary or final or subject to modification, for “monetary support, health care, arrearages, or reimbursement, and which may include other related costs and fees, interest and penalties, including income withholding, attorney’s fees and other relief” (42 U.S.C. § 659(i)(2)). Alimony is defined as a legal obligation of an individual to provide periodic payments of funds for the support and maintenance of the spouse (or former spouse). The definition of alimony includes alimony pendente lite, maintenance, and spousal support. It also includes “attorney’s fees, interest, and court costs, when and to the extent that the same are expressly made recoverable pursuant to a decree, order or judgment” (42 U.S.C. § 659(i)(3)(A) and (B)). It is important to note that the term “alimony” does not include any payment for property or transfer of property.

Wage withholding order. Once you have an order for support (child support or maintenance) in place, you should submit a wage withholding/income withholding order (IWO) in order to have your client receive money directly from the government rather than relying on the former spouse to voluntarily make payments. The IWO must direct the government, as the employer, to withhold money and remit payments to satisfy the support obligation. The IWO must be submitted as an underlying order. Submitting the divorce decree or other order is not sufficient and will delay direct payments to your client.

The order must be served upon Defense Finance and Accounting Service (DFAS) either by regular mail or by fax. The address, fax number, and required information can be found at the DFAS website (https://mypay.dfas.mil/mypay.aspx).

Payments will come out of the servicemember’s end-of-month pay. The approximate cutoff dates for submitting the IWO to get paid the next month are the seventh of the month for active-duty pay and the 15th of the month for retired pay. If the order is received after these dates, it will not go into effect until the following month.

Limitations to receipt of pay. The most common reason DFAS cannot pay the full court-ordered support amount is because the obligor/military member does not have sufficient disposable earnings. Disposable earnings is generally defined as gross pay minus authorized deductions. For child support cases, the disposable earnings is the base pay and special pay, including bonuses. However, the definition excludes allowances for BAH, BAS, taxes, and “normal” retirement deductions (Thrift Savings Plan (TSP) or Servicemembers’ Group Life Insurance (SGLI)).

This definition of payment is for support, not for the determination of income. The inability by DFAS to garnish pay allowances may cause confusion for some. There is no federal law mandating how support should be computed. Child support and spousal support amounts are established in accordance with applicable state law. Most states use “all income” to compute the amount of support, including both the taxable and the non-taxable income.

Consumer Credit Protection Act (CCPA), 15 U.S.C. § 1673. The CCPA limits the amount that can be deducted from the servicemember’s income as child support or alimony. The limits of the deductions range from 50 percent to 65 percent of the disposable earnings. The amount that can be deducted and the basis for the deduction are fully explained in the statute.

Termination of support order or emancipation of a child. If an IWO is implemented by DFAS, a termination order is required to stop the termination unless the IWO provides a specific date for the order to terminate. To terminate at the appropriate time, the order needs to be sent to DFAS at least one month prior to the termination date. This requirement applies for both child support and maintenance/alimony.

If the child support order covers more than one child, DFAS will not divide or reduce the child support obligation when one child has been emancipated unless the IWO specifically provides for that to take place and the child support is at a set amount for each child.

Family Care Plan Requirements

There is a significant misunderstanding about military Family Care Plans. These plans are a unique military requirement put in place for those servicemembers who are either single parents or dual military. Each branch has its own Family Care Plan. The servicemember is required to sit down with his or her commander and discuss the need to have a Family Care Plan, why it needs to be in place, and what can happen if one is not in place.

It is important to understand that the Family Care Plan is not a court document. It is a uniquely military document that has no civilian court effect. It is solely used to identify who will take care of the relevant family member(s) if a single parent or dual military family member is deployed or another issue arises that would leave that dependent in need of care and supervision.

Parenting or Timesharing Considerations for ServiceMembers

Military life is quite different from its civilian counterpart. In the military, it is normal to be moved once every two to four years. When a divorce occurs, the family may live in one place, and a parenting plan is put in effect that reflects that the now-divorced family all lives in the same area. The reality is that soon after the divorce is final, the servicemember will most likely have a permanent change of station (PCS) take place. This will most likely impact the parenting plan and the time spent with the children of the marriage.

It is recommended when representing a party in a divorce with a military nexus that a two-part parenting plan be prepared. The first part is the “typical” parenting plan that would be used in a normal parenting plan—the “standard” or “court approved” parenting plan that would normally be used in the jurisdiction. The second part would then need to take into consideration the long-distance aspect of the parties and the reality that, so long as the servicemember remains in the military, the parties will most likely need to have a plan in place that takes into account “long-distance” parenting time. The attorney will need to focus on how much time the non-custodial parent will have with the children, length of parenting time during the summer (to make up for lack of time during the school year), and responsibility for transportation, including who will travel with the children and who will cover the cost (based on the age of the children and possibly incorporating some type of offset or cost sharing).

Military parents are also concerned about what will happen if they are deployed and the other parent gets a temporary custody order or tries to get a permanent change in custody and support. Some states have addressed this by statute. The attorney may want to place language in the parenting plan/court order that if the military member deploys, then the parties agree to a temporary change of custody until the military member returns. The problem with this approach is that child custody and parenting time are always modifiable when addressing the best interest of the children.

Beyond understanding the previous information, it is important to know what documents to request in a divorce case. There are nuances that an attorney must be aware of to properly and competently represent a servicemember or retiree or the spouse properly in a domestic relations case.

“Must-Have” Documents

When a divorce case is initiated involving a member of the military, certain documents need to be obtained. Of these, certain ones are “must-have” documents. Lacking them will significantly increase the complications in obtaining the best result for your client.

Leave and Earnings Statement (LES). This is the “pay stub” received by active-duty, National Guard, and Reserve servicemembers. The LES contains all wage information of the servicemember. DFAS manages and administers the payroll for all branches of the military except the Coast Guard. The U.S. Coast Guard Pay and Personnel Center manages and administers the payroll for the Coast Guard. Servicemembers can access the previous 12 months of their LESs through the “myPay” portal on the DFAS website 24 hours a day. If older LESs are needed, a request must be made directly to the appropriate agency managing the pay. By reviewing the LES, an attorney can ascertain a lot of information in addition to the income and deductions that a servicemember receives. It is important to understand all the fields contained in the LES so that you can competently assist your client. The explanation of the fields can be found online, or you can ask your client to explain them to you.

The LES is broken down into many fields. At the top are nine fields that contain the identification portion of the LES. In the military, each rank corresponds to a grade. If the servicemember is enlisted, that servicemember’s grade will be E-1 through E-9. If the servicemember is an officer, that servicemember’s grade will be O-1 through O-10. Knowing the servicemember’s grade is important because it helps determine what the servicemember’s pay and allowances will be. The Pay Date, synonymous with the Pay Entry Base Date (PEBD), is the date that the servicemember entered the military for pay purposes. Knowing the number of years of service is important because it will assist in determining when the servicemember may be eligible to receive retirement and how long he or she has served. The Expiration Term of Service (ETS) is the date that the servicemember’s current contract expires.

The next section, fields ten through 24, contains entitlements, deductions, and allotments. The entitlement field consists of the pay that the servicemember receives. The pay includes basic pay, BAS, and BAH. It may also include cost-of-living allowance (COLA), hazardous duty pay, separation pay, and special duty pay. Basic pay is determined by the rank of the servicemember and the number of years of service from the PEBD. BAS is for food, and the amount is based on whether the servicemember is enlisted or an officer. BAH is for lodging and is based on the location of the servicemember, the servicemember’s rank, and whether or not the servicemember has dependents. Both these allowances are nontaxable income. The deduction field includes taxes, Servicemembers’ Group Life Insurance (SGLI), mid-month pay (if on active duty), and Thrift Savings Plan (TSP).

The next set of fields relate to the servicemember’s leave. Leave is synonymous with vacation. A servicemember earns 2.5 days of leave per month that he or she is on active duty. The earned leave that a servicemember receives translates into future money for the servicemember and may be considered a marital asset. Currently, the servicemember can carry up to 60 days of leave per year. If the servicemember accrues more than 60 days of leave, then the servicemember is in a “use or lose” status, meaning the servicemember must take the leave or it will be lost. If the servicemember is in the Reserves or National Guard, there will be zeros in the fields that pertain to leave.

The next fields that an attorney needs to understand are the Pay Data fields. The first block on that line indicates the BAQ Type that is being paid. BAQ, or Basic Allowance for Quarters, is the same as BAH. There are only two types of BAH that can be paid: Without Dependents and With Dependents. In the next block is the BAQ DEPN (Basic Allowance for Quarters Dependent). In this block is a code that indicates the type of dependent. The codes are available online. The next block is the VHA ZIP (Variable Housing Allowance ZIP Code), which is used in computing BAH.

To determine BAH, one can go to the Defense Travel Management website at http://www.defensetravel.dod.mil/site/bahCalc.cfm. When someone goes to this website, he or she inserts the ZIP code and the pay grade of the servicemember. This calculator will then determine the amount of BAH at the Without Dependent rate and the With Dependent rate that the servicemember could receive.

The next set of fields that an attorney needs to be aware of relates to the TSP. The TSP is similar to a 401(k) in the civilian world. If there are numbers in these fields, the servicemember is currently contributing to his or her TSP account. If the servicemember contributed to the TSP in the past but is not currently contributing to it, these fields will be blank or have zeros. Under the new “Blended Retirement System,” you will begin to see more LESs that have information in this field.

At the bottom of the LES is the Remarks section. This section is used to provide the servicemember “with general notices from varying levels of command, as well as the literal explanation of starts, stops, and changes to pay items in the entries within the other fields.”

Department of Defense (DD) Form 214. The second document that an attorney needs to review is a servicemember’s DD Form 214. This is the official government document that reflects the Certificate of Release or Discharge from Active Duty. This document only needs to be reviewed if the servicemember has been released or discharged from the military. This is the form that reflects when the servicemember was released or discharged from the military and under what terms. In addition, it provides information on the grade or rank of the servicemember at the time of release or discharge. The servicemember’s home of record at the time of entry on active duty will be annotated on the form. Further, the servicemember’s date of entry on active duty and date released from active duty are on the form. The servicemember’s decorations, medals, badges, and citations are also annotated on the form. At the bottom of the form, it will state the characterization of discharge (honorable, general under honorable conditions, other than honorable, bad conduct, or dishonorable).

Retiree Account Statement (RAS). The third document that an attorney needs to review is the RAS. This statement is used for military retirees who are receiving retired pay. The RAS is a two-page document. On the first page, the retiree’s gross pay, any Department of Veteran Affairs (VA) waiver amount, Survivor Benefit Plan (SBP) premium, and the retiree’s net pay are shown. This part of the RAS is important in determining military retirement pay, SBP designation, and if there are any VA disability payments being paid to the retiree. On the second page, garnishments, former spouse beneficiary of the SBP, allotments or bonds, and miscellaneous debts will be shown.

Statement of Retirement Points. The fourth document that an attorney needs to review is the Statement of Retirement Points, used for Reservists and members of the National Guard. This statement shows the history of the Reservist or National Guard member. The number of points earned during any given year and the amount of creditable or qualifying years toward retirement will be listed on the statement. This information is important in determining the military retirement pay for Reservists or National Guard personnel, the years of service, and the overlap between military service and the marriage.

Certificate showing if the servicemember is on active duty. The fifth document that an attorney will need to get is a certificate from the Defense Manpower Data Center (DMDC) pursuant to the Servicemembers Civil Relief Act (SCRA). In order to properly represent a servicemember or his or her spouse, an attorney must know and understand the SCRA, a federal law signed by President George W. Bush on December 19, 2003. The SCRA replaced the Soldiers’ and Sailors’ Civil Relief Act (SSCRA). The cases that were decided under the SSCRA are still good legal precedent. The SCRA can be found at 50 U.S.C. App. § 3901 et seq.

SCRA 50 U.S.C. App. § 3931 applies to default judgments. This section “applies to any civil action or proceeding, including any child custody proceeding, in which the defendant does not make an appearance.” For the court to enter a default judgment against a servicemember, the plaintiff/petitioner must file an affidavit with the court stating whether or not the defendant/respondent is in military service and showing necessary facts to support the affidavit; or if the plaintiff/petitioner is unable to determine whether or not the defendant/respondent is in military service, stating that the plaintiff/petitioner is unable to determine whether or not the defendant/respondent is in military service.

To satisfy the requirement of the affidavit, the plaintiff/petitioner may file a statement, declaration, verification, or certificate in writing that is subscribed and certified or declared to be true under penalty of perjury (50 U.S.C. App. § 3932). A certificate of the Service Secretary is prima facie evidence that the defendant/respondent is, in fact, in military service (50 U.S.C. App. §4012). To assist the courts, attorneys can use a Department of Defense website (https://scra-w.dmdc.osd.mil/scra/#/home) to determine whether a person is on active duty. When someone enters the information (either Social Security Number or date of birth and the person’s name), a certificate will be printed stating that the individual is or is not on active duty with the Armed Forces. This certificate is sufficient to comply with the SCRA.

VA Benefits Summary Letter. With the issues raised in Howell v. Howell, 137 S. Ct. 1400 (2017), it is important to know if the servicemember is going to be receiving benefits from the VA and what the rating will be. Knowing what additional income the servicemember/retiree has is also important in determining child support and maintenance/alimony issues. The VA Benefits Summary Letter provides information on how much the servicemember is receiving from the VA, the effective date of the payments, and the combined evaluation.

Promotion orders. These orders will provide information as to when the servicemember was promoted and if there is any overlap when determining the “High-3” pay (the average of the highest three years of monthly base pay that the servicemember received) when determining that number for an Order Dividing Military Retirement.

RCMS Automated Record Brief. Previously known as the Officer Record Brief (ORB) or Enlisted Record Brief (ERB), the RCMS Automated Record Brief should provide the complete history of the servicemember. It also provides the Basic Active Service Date.

Getting Government Documents into Evidence

The easiest way to obtain government documents and place them into evidence is through the discovery process. The attorney should request the important documents, discussed above, in the initial Request for Production of Documents. When requesting a DD 214, the attorney needs to understand that the servicemember who had a break in service will normally have more than one DD 214. It is important to request all DD 214s.

If the servicemember is unable or unwilling to produce the DD 214, the document can also be obtained by serving the National Personnel Records Center. This will need to be done by using a subpoena, signed by a court of competent jurisdiction. The website address is https://www.archives.gov/personnel-records-center/court-order. The specific language is contained at the website.

As with the DD 214, the LES and RAS are best obtained through discovery. However, if the servicemember is unable to provide either of these documents, they can be obtained, as appropriate, by serving a subpoena on DFAS that is signed by a judge of a court of competent jurisdiction. The subpoena must contain the servicemember’s name, Social Security Number, and the item or items being requested. The request should be submitted to the following address: DFAS-Cleveland, DFAS-ZCF/CL, 1240 East Ninth Street, Room 1417, Cleveland, OH 44199.

The VA Benefits Summary Letter is also best obtained through discovery. The servicemember/retiree can obtain the letter through the VA eBenefits account.

The best way to obtain all the documents addressed above is through the standard discovery process. That being said, not all litigants are cooperative or have maintained their records. As such, if the attorney is unable to get the documents needed, then a subpoena, signed by a judge in a court of competent jurisdiction, will be the next best approach to obtaining the needed documents.

Conclusion

As you can see from the above, there is a lot of information that an attorney needs to know to begin representation of a servicemember or the spouse of a servicemember. The information provided is only the tip of the iceberg in the knowledge needed to competently represent your client. There are also issues regarding the division of military retirement and Survivor Benefit Plan that an attorney needs to know how to properly divide. That being said, representing a servicemember or the spouse can be a rewarding experience, even in the high-conflict world of divorce.

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Joseph A. DeWoskin, a past Chair of the GPSolo Division, is a sole practitioner in Kansas City, Kansas, focusing in the areas of family law, military law, landlord-tenant law, and general litigation. He is admitted to practice in Missouri and Kansas. After 27 years of military service, he retired in 2018 from the Army Reserves as a lieutenant colonel. He has been retained to testify and assist as an expert on legal matters relating to military divorce, including cases involving the division of military retirement benefits, the Servicemembers Civil Relief Act, and rights under the Uniformed Services Former Spouses’ Protection Act.