One of my all time favorite family law blogs is Updates in Michigan Family Law written by Attorney Jeanne M. Hannah. I read her posts every week even though thinking about Michigan gives me a twinge of pain as a “Buckeye”.  Nonetheless, her posts are always informative and excellent! She recently posted on a topic that I felt would be of interest to our readers, especially since our law office is only a few miles from Wright-Patterson Air Force Base. With Jeanne’s kind permission, I have republished her article below.

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Recent articles and news programs have focused upon active duty military members who have returned from overseas tours of duty (often in the Middle East) to find themselves engaged and involved in “custody battles” with former spouses who are arguing it would be in the “best interests” of the minor child/children to remain with the parent who has provided care and custody during the year(s) the military parent was deployed overseas.

Michael R. Turner, R-Ohio, a member of the House of Representatives, has been trying for the past three to four years to pass an amendment to the National Defense Authorization Act (“NDAA”) which would provide military parents child custody protection while they are serving out-of-country on active duty with any branch of the military service.  To read Turner’s proposed amendment, click here. In a pointed letter directed to the Secretary of Defense, Robert M. Gates, on September 30, 2009, Representative Turner wrote:

“What is particularly troubling (to me) is that the Department of Defense has misplaced priorities with regard to federal protections for service members.  It has no objection to the FY10 NDAA House language allowing service members to cancel their cell phone contracts without penalty after orders of deployment, yet it opposes protecting the child custody rights of these same service members.  Surely, custody rights are at least equally important!”

I shall now discuss three (3) representative court cases that have attracted some national notoriety over the past few years:

1. Lt. Colonel Vanessa Benson, a Kentucky resident, was deployed to Afghanistan in December of 2008.  She executed a Family Care Plan wherein her former Husband would have temporary custody of their son during her overseas deployment.  When she returned from Afghanistan, she expected to be reunited with her fourteen (14) year old son.  This was not to be as her former Husband filed a suit in Florida asking that he be designated as the primary residential parent based upon a “substantial change in circumstances”.  Father argued that it would be in the child’s “best interest” for him to be granted “custody” as he could provide more “stability” for the minor child.

   Lisa Davidson, a Brevard County Florida Circuit Judge, recently ruled that Lt. Colonel Benson be awarded “temporary custody” of the minor adolescent son so that he would spend Christmas 2009 with his Mother and her new family at Mother’s place of residence.

   This is a difficult case since the fourteen (14) year old has told the Court that he wants to remain with his Father, in part because he is not fond of Mother’s new Husband.  While Mother argues that Father has “bought” the Son’s allegiance with a motorbike and new drum set, Father asserts that the Son wants to remain with him in Florida.  There will no doubt be additional Court proceedings in this case!

2. Staff Sergeant Jessica Tolbe served a twelve (12) month assignment in Iraq.  When she returned home to Hawaii in February 2009, she expected to be reunited with her two sons, ages eight (8) and ten (10).  Instead, she found herself involved in a “custody battle” in Tennessee with her former spouse who argued that he was more “stable” than Mother/Wife. Even though Father is in the military, he is not subject to being deployed overseas.  At the present time, the two (2) sons remain in the custody of Father with Mother having rights of visitation.  It must be noted that if Mother asks to be placed in a “non-deployable position”, she would be saying “good-bye” to a successful military career, and she would be denied the opportunity for further promotions. (Note the similarity in the Fathers’ arguments: I am inherently more “stable” than the Mothers of the children because I am not subject to deployment to fight a war.)
3. Clinton M., an Air Force Tech Sergeant, received military orders to deploy to Afghanistan in January 2009.  His former spouse attempted to keep the parties’ minor child with her in California by refusing to return the Daughter to Father’s family in North Dakota.  At a hotly contested trial, the assigned Judge ruled that the child would be returned to the Father forthwith.

   In this particular case, the child’s Mother kept reporting that the parties’ Daughter was being “abused” by the current Wife of Father.  The allegations of abuse were not substantiated and added unnecessary drama and delay to the outcome of the case.

CONCLUSION:

I am in support of Michael Turner’s proposal to change the federal law to protect the men and women who are fighting for us here and overseas in order to protect us and our freedom. It does not seem fair or logical that a military member (Husband or Wife) who is deployed overseas should return home after a remote tour of duty to find that he or she is now engaged in a “custody battle” regarding the parties’ child or children.  It appears that the parent having “temporary custody” of the child or children during the other parent’s deployment is using the military deployment as a “substantial change of circumstances” in order to gain “custody” of the minor child or children.  This position is not fair or equitable to our men and women in uniform who risk their lives for you and for me while defending our country!

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The Pentagon reported the divorce rate among military members increased again in the past year and is now a full percentage point higher than it was around the time of the September 11, 2001, attacks.  According to their figures, the divorce rate of about 3.6 percent for fiscal year 2009 increased from the reported 2001 rate of 2.6 percent.  Women in uniform continued to have a much higher divorce rate than their male counterparts – 7.7% in 2009 compared with only 3% for men.  Air Force Maj. April Cunningham, a Defense Department spokeswoman, said the latest year-to-year change was relatively small because the services have made available programs focused on strengthening and enriching family bonds among couples.  “We believe these programs are instrumental in mitigating the stresses deployment places on marriages,” said Cunningham.

The actual data for the Afghanistan study indicated that the Army is trying to increase the number of mental health providers for the 68,000 US troops having problems such as acute stress, depression, and anxiety from the current number of 43 to roughly 103.  Seemingly, a very low number of counselors in my opinion!

“Every marriage has controllable and uncontrollable factors,” said Joe Davis, spokesman for the Veterans of Foreign Wars.  “But when you interject eight years of war, preparing for war, being at war, coming home and having to think about going back to war again – and when you have children – it just has a tremendous impact on the family unit. . . . Still at the end of the day, it’s that one mother or father who has to go home and close the door and be home alone with their children. There’s nothing you can do that will end the stress of having a loved one at war until the war ends,” said Davis.

The Pentagon acknowledges that their figures do not count veterans, who divorce after leaving the services, or reflect other possible wartime consequences on families, such as increases in alcoholism or the toll on orphaned or emotionally stressed children of troops.  Also, the figures do not speak to troubled but only intact marriages.  In an Army battlefield survey taken in Iraq in the spring, nearly 22 percent of young combat soldiers who were questioned said they planned to get a divorce or separation, compared to 12.4 percent in a survey conducted in 2003.

Regardless of how accurate the statistics are, the negative impact for military families and children by the two ongoing wars and repeated deployments continues to fracture military families.  Or, as a military’s spokesperson spins it, “In both theaters of operation, soldiers continued to face stress resulting from multiple deployments, but report feeling more prepared for the stress.”  Despite being “more prepared for the stress,” even the military acknowledges that troops in their third or fourth deployment reported significantly more acute stress and other psychological problems, and married soldiers among them reported significantly more marital problems compared to soldiers on their first or second deployment.

As a divorce lawyer, I can tell you how important it is for individuals living in their hometown in a relatively “stable” situation to have access to mental health counselors, therapists and support groups.  I can’t fathom the pain and burden of trying to fight a war abroad while being separated from a spouse and children and all the accompanying anxiety and stress. We certainly owe a huge debt of gratitude to each and every one of them!

For more information about this story, click here.

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In April, one of our Family Blog Articles focused upon the division of military pensions. The focus of this article is upon other benefits available to former spouses of military members. Those potential benefits include the following:

A. Commissary Benefits: Commissary is defined as “a store, as in an army camp, where food and supples are sold”. The Commissary at Wright Patt Air Force Base is a very large “grocery store” with all the amenities and the usual departments to include: Meat/Fish/Poultry, Fresh Produce, Bakery, Deli, Frozen Food Products, Canned Food Products, Paper Products, Cereal and Grain Products. The primary benefit to the former spouse is that the prices are much less expensive than prices at local grocery stores. Shopping there is a true benefit in terms of dollars saved!

B. Base Exchange Benefits: The Base Exchange is similar to a large department store having the following departments: Men’s Clothing, Women’s Clothing, Children’s Clothing, Shoes, Make-Up, Gifts, Jewelry, Television Sets and Electronics, Small Appliances, and other Miscellaneous Departments. As in Item A. above, the prices are less expensive than prices at local department stores providing another true benefit in terms of cost savings.

C. Base Hospital and Medical Benefits: This benefit provides the most significant financial benefit to former spouses of military members. As I mentioned in my article last month, I shall use “me/myself” to illustrate the benefits available. My marriage to former military member exceeded twenty years of marriage/service overlap with his total military service of twenty years, the so called 20-20-20 rule. Accordingly, when I retire from my present position of employment and no longer have health insurance benefits available to me through employment, I will be eligible to utilize health services available at Wright Patterson Air Force Base (“WPAFB”) Medical Center or I can seek medical services available through TRICARE, formerly known as CHAMPUS. The Medical Center at WPAFB has a complete pharmacy, large and modern laboratory services, and modern equipment for diagnostic examinations. And, most health care services provided at the Medical Center are without charge.

With the present status of health care insurance, this benefit is extremely valuable and important to me! (When pricing civilian health insurance plans, I would easily experience a savings of $400 to $600 per month!). Again, the “magic” year for entitlement to the foregoing benefits is to have a marriage/service overlap of twenty years with the former military member having twenty years or more total military service. In cases where the service member served twenty (20) years of creditable service and the marriage lasted twenty (20) years, but the period of the marriage overlapped the period of service by only fifteen (15) years, the former spouse is entitled to full military medical benefits ONLY for a transitional period of one year following the divorce. After this year of coverage, the former spouse may purchase a Department of Defense negotiated conversion health policy, but there would be premiums for the former spouse to pay. Full coverage also requires that the former spouse does not remarry nor enroll in an employer-sponsored health insurance plan.

Former spouses who are neither 20/20/20 nor 20/20/15 former spouses are not entitled to military health benefits after a divorce. So, in the event a military marriage is deteriorating and if it appears that a divorce is going to be a reality, there are certain options to be explored. They are as follows:

1. If the marriage and service overlap is very close to the “magic” number of 20/20/20, I would consider actions to “slow down” the divorce process and even ask the Court to sanction a delayed divorce proceeding to allow the former spouse to benefit from the 20/20/20 rule as outlined above. This would be similar to asking the Court to delay proceedings to enable the Wife to have a ten (10) year marriage in order to provide for her to take advantage of certain Social Security benefits available to her for having a marriage of ten (10) years duration.

2. Consider having the divorce proceeding “dismissed” with a subsequent filing of a legal separation proceeding. This option would have to have the understanding and cooperation of the military member with the goal of providing continued military medical benefits to the former spouse who would be “legally separated” but still “married to” the military member or former military member.

Here are some helpful online resources for people wishing additional information:

EX-POSE is a national volunteer nonprofit organization having a paramount concern for military spouses experiencing separation and/or divorce. E-mail address is–ex-pose@juno.com Website is http://www.ex-pose.org

TRICARE Questions: http://www.tricare.mil

TRICARE HealthBeat Newsletter: http://www.tricare.mil/HealthBeat

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Because our law practice is in close proximity to Wright-Patterson Air Force Base (“WPAFB”) and because I am a “former” military spouse (who receives a fifty percent (50%) share of my former spouse’s military pension), a decision was made to add several articles to our Family Law Blog Site related to special considerations which must be made in assisting a military member and/or his/her spouse in the termination of their marriage.   This is the first article having special emphasis on the division of military pensions.

Historically, it is important to note that military pensions were not always subject to division.   In 1981, in a decision that was hailed by military members and greatly criticized by their former spouses, the Supreme Court of the United States in McCarty v. McCarty, 453 U.S. 210 (1981), decided that military pensions were NOT marital property or community property; and as such, were not subject to division between spouses going through a divorce or dissolution.  In response to pressure from former spouses and other supportive groups, in 1982 the Congress  drafted and passed corrective legislation known as the Uniformed Services Former Spouses’ Protection Act (“USFSPA”) to nullify the holding in McCarty v. McCarty.  Since the passage of the USFSPA, military pensions are considered to be marital property and are divisible in divorce or dissolution proceedings.

But, one may just ask which or what retirement benefits are divisible between the military member and the anticipated former spouse?  The term or phrase “Disposable Retirement Pay” is an important one to learn and understand.  Disposable Retirement Pay is the service member’s gross or total monthly retirement pay less deductions for:

–disability retirement pay;

–amounts deducted to provide for a Survivor Benefit Plan (“SBP”);

–federal income and social security taxes;

–other amounts required by law to be deducted from the member’s gross retirement pay.

It is ONLY the military member’s Disposable Retirement Pay as set forth above that may be divided by the domestic relations divisions of state courts.   It is also interesting to note that some military service members will knowingly elect to increase the percentage of their disability retirement in order to decrease the amount of Disposable Retirement Pay that is subject to division.  For example, assume that a USAF pilot receives a twenty percent (20%) disability for a lower back problem from years of sustaining G-Forces to his spine.  If he later succeeds in arguing that his percentage of disability should be forty to fifty percent (40% – 50%) for the same lower back condition, his Disposable Retirement Pay would decrease in an amount resulting in a lower monthly retirement benefit for his former spouse.

It is crucial for the soon-to-be former spouse to have counsel familiar with the division of military retirement pay in order to have the necessary and vital language in the parties’ Separation Agreement and/or Final Judgment and Decree of Divorce to ensure that the former spouse will indeed get his/her fair share of the service member’s military retirement.  The following language should be incorporated into the parties’ pleadings:

“The Former Spouse shall receive one-half (½) of Member’s Disposable Retirement Pay according to the following formula: one-half (½) of the length of the parties’ marriage/service overlap divided by the total years of the Military Member’s total military service times the amount of Member’s Disposable Retirement Pay.”

To illustrate the formula, I shall provide two examples:

Example #1: We have a marriage lasting twenty years with twenty years of marriage and service overlap.  Husband is expected to receive $2000.00 per month in Disposable Retirement Pay.   With the formula set forth above, the former spouse should expect to receive one-half (½) of twenty (20) years of marriage/service overlap divided by twenty (20) years of military service times $2000.00 per month (½ times 20/20 times $2000.00 = $1000.00).

Example #2: But if the Husband remains in the military for thirty (30) years, the formula changes to one-half (½) of twenty (20) years of marriage/service overlap divided by thirty (30) years of military service times $2000.00 per month (½ times 20/30 times $2000.00 = $667.00). This formula provides the former spouse with a smaller portion of the military member’s retirement benefits.

To conclude, the military member’s retirement benefits may be the most significant asset of the marriage (along with the value of the parties’ marital residence and other investment accounts).  It is crucial for the former spouse to have counsel who will advocate for him/her to receive their fair share of that military benefit. Click here to be linked to the Department of Defense website if you have more questions about the USFSPA provisions.

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I hate to get too technical, but I recently learned that there has been a significant change in the manner in which the Defense and Accounting Service will allow a continuation of payments to a former spouse after the military member/retiree dies. This SBP procedure used to be simple for the attorney. Previously, all that was needed was a timely letter from the attorney to DFAS requesting the election along with a copy of the court order and decree.

Guess what? After September 27, 2008, the ONLY manner such a survivor benefit election can be accomplished is by submitting to DFAS a completed DD 2656-10 form along with a copy of the decree. If the old approach is utilized, the election will NOT be valid. Click here to see a memo from the Under Secretary of Defense dated May 30. 2008, indicating the change.

The time perimeters have not changed. If the member/retiree requests the coverage, the deadline is one year from the date of the divorce. If the former spouse requests the coverage, she must send in this DD 2656-10 form within one year of the filing of the court order terminating the marriage.

Our law firm handles many military divorces, in part because we are located near Wright Patterson Air Force Base in Dayton. Unfortunately, it seems that these significant changes have not been publicized widely. Failing to implement this new procedure after September 27, 2008 will undoubtedly result in an invalid election and problems for counsel who had represented the former spouse of the member of the military.

Please note there is a similar notice but a different form for Reserve Personnel. This form can be found by clicking here.

Click here to link to the new DD 2656-10 form.

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The Army has developed an excellent online resource guide that would benefit new members of all the branches of the armed services, as well as their spouses and their families. It contains a great deal of useful information, including many resources and various checklists. The guide is described as follows:

“This guide introduces new Army spouses and family members to military family life. It contains information on aspects of Army life from military benefits to recreation. It also includes a glossary of Army terms and abbreviations as well as a list of useful Web sites.”

Military OneSource requires that you login on their site in order to access information. You will need to login and search ‘spouse guide’ in order to find the guide titled “A First Guide for Army Spouses and Family Members.” The guide is available to download in PDF format. Click here to be linked to the website.

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