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Friday, 19 September 2014 00:00

Military Law

Divorce can be a confusing, complicated, and stressful time for military couples. However, gaining a general understanding of how this process works, while seeking to identify the specific issues that may apply in your case, can greatly reduce the time, expense, and emotional strain of a divorce. While you will largely follow the same process and procedures as a civilian couple when filing for divorce, there are unique legal issues which may apply result of military service. These issues may include determining the custody of children, calculating child and spousal support, and determining if any post-divorce benefits apply.

While divorce is largely governed by state law and local procedures, depending on where you file, there are certain federal statutes and military regulations which may be applicable to your divorce. Examples include the Uniformed Services Former Spouses' Protection Act, which can affect how disposable military retired pay is divided between the service member and former spouse, as well as determining eligibility for continued medical, commissary, installation exchange, and other benefits.

Overview

Generally, the military views divorce as a private civil matter to be addressed by a civilian court. Commanders rarely get involved in domestic situations except in limited cases, such as a claim by a dependent that he or she is being denied adequate financial support by the service member spouse. Even in such cases, a commander's authority is limited, absent a civilian court order.

Service members and their spouses have access to military legal assistance services at no cost through the installation legal assistance offices. In a divorce or family law matter, a service member and dependent spouse will need separate legal assistance attorneys to advise them to ensure both parties receive independent, candid and confidential advice, and to be sure there is no conflict of interest in the representation of both parties. Communications between a client and a legal assistance attorney are private, confidential and are generally covered by the attorney-client privilege. While military legal assistance attorneys may not be able to draft specific court documents or represent members or their families in court, they can provide helpful advice on a range of legal issues including divorce and child custody, income taxes, the Servicemembers Civil Relief Act and wills.

Legal assistance offices also provide notary services free of charge. For military divorce or legal separation situations that require representation in civil court or involve contested issues such as child custody, spousal/child support or division of assets like retirement pay, it is recommended that you consult with a civilian attorney who is knowledgeable of the divorce laws of your particular state and has extensive experience with military-related family law.

Servicemembers Civil Relief Act protections related to divorce proceedings

The Servicemembers Civil Relief Act helps protect service members' legal rights when called to active duty. It applies to active-duty members of the regular forces, members of the National Guard when serving in an active-duty status under federal orders, members of the reserve called to active duty and members of the Armed Services, National Oceanic and Atmospheric Administration, Public Health and the Coast Guard serving on active duty in support of the armed forces.

In regard to divorce proceedings, service members may obtain a "stay" or postponement of a civil court or administrative proceedings if they can show their military service prevents them from either asserting or protecting a legal right such as an upcoming deployment. This is not an automatic right, and a military judge must find there good cause to do so, based on the justification provided by the military member.

Specifically, the courts will look to whether military service materially affected the service member's ability to take or defend an action in court. If the service member submits a written communication to the court showing:

  • How military requirements materially affect the ability to appear
  • The date when the service member will be available to appear, and
  • Communication from the commanding officer stating that duty prevents appearance and leave is not authorized, the court must grant a stay of at least 90 days. Because some state courts have strict requirements of what specific information must be contained in this notice in order to grant a stay, service members should promptly consult with a legal assistance attorney if they intend to make such a request.

The Servicemembers Civil Relief Act also provides certain protections for members regarding default judgments for failure to respond to a lawsuit or failure to appear at trial. Before a court can enter a default judgment against a military member, the person suing the member must provide the court with an affidavit stating the defendant is not in the military. If the defendant is in the military, the court will appoint an attorney to represent the defendant's interests (usually by seeking a delay of proceedings). If a default judgment is entered against a service member, the judgment may be reopened if the member makes an application within 90 days after leaving active duty, shows he/she was prejudiced and shows he/she had a legal defense.

Uniformed Services Former Spouse Protection Act benefits related to divorce proceedings

The Uniformed Services Former Spouse Protection Act is a federal law that provides certain benefits to former spouses of military members. The benefits may affect receipt of retirement pay and medical care, as well as the use of the exchanges and commissaries. For detailed information about this act and how it may impact your divorce proceedings, please read the article Uniformed Services Former Spouse Protection Act for Divorced Spouses in the Military.

Eligibility for military benefits

Whether you are entitled to commissary, exchange or medical benefits depends on the length of time you were married, the length of time your spouse served in the military and the number of years your marriage overlapped with his or her military service. To retain full military benefits and privileges upon divorce from a servicemember, you must meet the requirements of what is known as the "20/20/20 Rule."

20/20/20 former spouse: An un-remarried former spouse receives medical, commissary, exchange and theater privileges under the Morale, Welfare and Recreation program if:

  • He or she was married to the military member for at least 20 years at the time of the divorce, dissolution or annulment.
  • The military member has performed at least 20 years of service that is creditable in determining eligibility for retired pay (the member does not have to actually be retired from active duty).
  • The former spouse was married to the member during at least 20 years of the member's retirement-creditable service.

Therefore, if you were married for at least 20 years, and your former spouse performed at least 20 years of service creditable for retired pay, and there was at least a 20-year overlap of the marriage and the military service, you are entitled to full commissary, exchange and health care benefits after the divorce.

20/20/15 former spouse: In the event that you cannot qualify under the "20/20/20 Rule," you may still be eligible to one year of transitional military benefits for purposes of military medical care only. Similarly, the 20/20/15 rule requires the former spouse to show three things:

  • The service member performed at least 20 years of creditable service;
  • The parties' marriage lasted at least 20 years;
  • The period of the marriage overlapped the period of service by at least 15 years.

Should these requirements be met, the former spouse will be entitled to retain TRICARE medical coverage, but only for a transitional period of one year. Unlike a 20/20/20 former spouse, a 20/20/15 former spouse will not have access to the military exchange, installation privileges or commissary privileges.

Effect of Divorce on Military Benefits

Unless you meet the strict requirements of the 20/20 Rule, you will not be eligible to continue using the commissaries and exchanges once your divorce, dissolution or annulment is finalized. Until your divorce is final you may retain your identification card and can continue to receive your commissary, exchange and health care benefits. Here are some additional issues for you to consider:

  • Installation housing. The service member does not have the authority to evict you; only the installation commander has that authority. By law, military family housing can only be occupied by service members who reside with their family members (with some exceptions). Each of the branches of service has regulations which require the family housing unit to be vacated usually within 30 days if the service member stops residing there or if there are no family members residing there. As a result, if you are separating from your spouse and you are not in the military, you and your family must vacate military family housing.
  • Health care benefits. If you are neither a 20/20/20 nor a 20/20/15 former spouse, you will not be entitled to any military health benefits after your divorce, dissolution or annulment is final. However, you can receive health care coverage through the DoD Continued Health Care Benefit Program, a premium-based temporary health care coverage program, for 36 months of coverage until alternative coverage can be obtained. Further information about this program is available on the TRICARE website.
  • Spousal and Child Support. Each of the military services has policies requiring service members to support family members upon separation in the absence of an agreement or court order. Please note these policies are designed to be temporary measures and that a commander's authority is limited without a court order. In order to receive alimony or child support you must specifically request that a civilian court do so. Additionally, you must send Defense Finance and Accounting Service an order from a court or child support enforcement agency that directs the government to pay monies for support or alimony.
  • State courts with jurisdiction over dependent children or a state agency with the proper authority can order child support payments. Alimony payments can also be ordered by the court and satisfied through a garnishment order submitted to DFAS. The allotment will go into effect 30 days after the notice was sent to the military member by DFAS. You must obtain the garnishment order from a state court over the military member and provide it to DFAS. An overview of the garnishment process is available on the DFAS website.
  • Child support can additionally be secured through what is known as a statutory allotment. Statutory allotments are initiated by a complainant parent, state agency, or private attorney, who can establish a support obligation greater or equal to two months.

The impact of a divorce on children's eligibility for medical benefits through TRICARE

When there is a divorce, the service member must update the information in the Defense Enrollment Eligibility Reporting System along with a copy of the divorce decree. After this information is updated, spouses are no longer considered dependents and lose their eligibility to continue receiving health care benefits through TRICARE.

Biological and adopted children of the service member remain eligible for TRICARE up to age 21 (or age 23 if enrolled in college) as long as the child remains a dependent child of the service member. Dependent children of the service member over the age of 21 (or 23 if enrolled in college) are eligible to purchase coverage through TRICARE Young Adult up to age 26. Stepchildren who were not adopted by the service member lose their TRICARE eligibility once DEERS is updated. Stepchildren may be eligible to purchase coverage under the Continued Health Care Benefit Program.

When both of the divorced parents are service members, you must decide together which parent should be the sponsor of the child's benefits. If an agreement cannot be reached, visit an ID card office for additional guidance on how to resolve the issue. If custody of your child is shared, and you and your former service member spouse live in different TRICARE regions, you should decide carefully which health plan option your child(ren) should use based on the amount of time they stay with each parent. If you need further assistance, contact your regional contractor.

Divorce in overseas locations

While service members and their spouses can file for divorce through overseas jurisdictions, the courts of the United States may or may not recognize the ruling. Generally, if either you or your spouse is domiciled in the jurisdiction that grants the divorce, and there is proper service and notice, then that court (foreign or domestic) will have the power to grant the divorce and the U.S. courts will recognize it.

You can avoid this potential issue by filing for divorce in a state, rather than through a foreign country. Military divorce laws allow service members and their spouses to file for divorce in either the state where the service member is currently stationed, the state where the service member claims legal residency or the state where the non-military spouse resides. When determining in which state to file, it is important to remember that the Uniformed Services Former Spouse Protection Act grants the power to divide the military pension in a divorce to the state where the service member claims legal residency. One caveat is if you own property, such as a house, in a foreign country. You may wish to consult your military legal assistance attorney or your civilian lawyer in such situations.

If you are living overseas when your marriage is terminated by divorce or annulment, you and your children (as well as your possessions) may be able to return to the United States (or your country of origin if you are foreign nationals) at the government's expense. Service members permanently stationed outside the United States may request early return of dependents, authorizing the return of command-sponsored family members and their household goods before the service member's tour ends.

Published in Practice Areas
Friday, 19 September 2014 00:00

Property Division

Behind child custody and alimony, another hotly contested part of divorce is deciding who gets what; dividing the property brought into the marriage as well as what you purchased jointly. Property covers both real property, such as your home, and personal property, such as household items or cars. Courts use many factors in deciding property division issues and final orders.

Community Property Division

In community property states, each spouse is generally entitled to half the property acquired during the marriage. This is the community property.

Not all property is community property. Spouses may have and keep their separate property. ''Separate property'' typically includes:

  • Property or businesses you owned before marriage
  • Gifts and inheritances received by you
  • Pension proceeds that vested before marriage

Ten states have community property laws. Alaska law allows couples to enter into community property agreements or a community property trust.

Equitable Distribution

In most other states, courts divide a couple's assets in an ''equitable'' (fair) manner, called equitable distribution. Equitable is what is fair to both spouses, and fair may not mean equal.

State laws give the factors courts use in deciding what is "equitable." Generally, factors include:

  • Marriage length
  • The work history and job prospects of each spouse
  • The physical and mental health of each spouse
  • The source of particular assets
  • The type of assets, and liquidity of the assets
  • Whether or not one spouse should keep the family home, or the right to live there for a time
  • Tax considerations

Property Settlement Agreements

If you and your spouse can agree on how to divide your assets, whether it follows your state's guidelines or not, your lawyers will write up a formal agreement called a ''property settlement agreement" or a "marital settlement agreement" (MSA), depending on your state's laws. Detailed lists of who gets what are included in this agreement.

Many states' laws spell out that a voluntary property settlement is preferred to having the court decide those issues. There's no way to predict or guarantee how a court will decide property division issues, so many couples prefer to work out a property settlement on their own.

Do read the property settlement agreement carefully, and ask your lawyer about anything you don't understand. Once an agreement is signed and approved by the court, it's likely be difficult and expensive to change.

 

Breaking Down Property Division Issues

Whether you and your spouse agree on a property settlement, or have the court decide the issues, a lot of work and planning goes into this part of your divorce. The basic step of completing a property inventory and planning for tax impacts are important.

Taking a Property Inventory

Before you can nail down a property settlement, you need a big picture of what your assets are. One of your first tasks, even if you're thinking about a divorce, is to make a property inventory. It's vital to list all property you and your spouse own. Don't try to hide assets as it will only complicate dividing your property.

Many lawyers have property checklists to help clients complete their inventories. You may be surprised about assets you may have forgotten about.

Tax Considerations

Generally, the property division in your divorce doesn't create tax consequences to worry about on your next tax return. The reason is that usually there's no federal tax gain or loss when a property transfer of is "incident to the divorce." This means that the transfer:

  • Happens within a year of the date the marriage ends, or
  • Is related to the end of your marriage

Further, for a transfer to be related to the end of a marriage, your divorce or separation decree must also provide for it, and it has to be done within six years of the end of the marriage.

Review possible tax impacts of your property division with your lawyer or accountant as you work towards the final terms.

Property Transfer After the Divorce

As soon as the property settlement is approved or the court finalizes the divorce, you'll want to take care of the details of the property transfer. This includes preparing and signing the documents needed to transfer ownership.

While it may be the last thing you want to do, taking care of these details will save future trouble and make it easier to gain closure on this chapter of your life.

Questions for Your Attorney

  • My spouse and I have moved a lot. Does that affect whether community property or equitable division methods are used to divide our assets?
  • Does my separate property lose its character if I use it to benefit my family? What if it's a major asset, such as the family home?
  • My spouse and I agreed to put much of the income we save into my spouse's 401(k) account. How will that factor into our property settlement agreement?
Published in Practice Areas
Friday, 19 September 2014 00:00

Protection Order

Restraining orders, often also called protection orders, are orders issued by judges that tell people to do or not do certain things. They can be used in non-criminal situations, such as telling property owners to stop activities that constitute a public nuisance and directing parties in a civil lawsuit to leave each other alone. Restraining orders in a civil context may also be called temporary injunctions (which can become permanent injunctions).

 

In a criminal context, judges use restraining or protective orders to prohibit abusive spouses or partners from contacting or harming the other spouse or partner, and to keep stalkers or harassers at bay. This article focuses on the use of such orders in a criminal context.

How Are Restraining Orders Issued?

In a typical situation, a victim or would-be victim of annoying and potential criminal activity applies to a judge for an order directing the aggressor to do a specific act, back off, or stay away. In federal courts, the object of the order is not necessarily entitled to notice of the application; in state courts, notice is typically required, though the time period may be quite short and it may be dispensed with altogether in a domestic violence situation.

What does the applicant need to prove?

People who ask for restraining or protective orders need to convince the judge that they’re necessary to prevent continuing or imminent harm. In a domestic violence situation, for example, the victim (the plaintiff) supplies a sworn statement alleging facts that support a claim of serious, imminent harm, which enables a judge to issue a temporary order then and there, without notice to the object of the order (the defendant). After the defendant receives notice and within a few days, the judge will hold a hearing to determine whether to make the restraining order final.

At the hearing, the plaintiff must prove the truth of the allegations (by a preponderance of the evidence, not the stricter standard of beyond a reasonable doubt). Permanent orders (but generally not temporary ones) can be appealed to a higher court.

How long do protective orders last?

Many states set a time limit on the duration of a final order (though extensions can be granted); others allow the judge to make the order permanent. But even final orders can be modified if either party asks the judge to do so (and if the judge agrees).

How Are Restraining Orders Enforced?

An order directed at a domestic abuser or stalker is enforced by the police. Many statutes say that the police “shall” enforce the order, by arresting the violator. Sadly, however, police departments consistently fail to take requests for enforcement seriously, sometimes resulting in tragedy.

Consequences for Failing to Obey a Restraining Order

Assuming the police do intervene when a defendant has violated the terms of a restraining order, what happens next? The police in many states are directed by statute to arrest the defendant, and prosecutors can charge him or her with a crime for violating the order (such as contempt of court). Of course, if the violation (an assault, for example) is also a crime, the defendant should be charged with that, as well.

For a state-by-state explanation of domestic violence laws, see Domestic Violence and Abuse.

Questions to Ask Your Lawyer

If you are the victim of stalking or domestic violence and need a protective order, you can apply directly to the prosecuting attorney in your area (also called the “district attorney”). Or, you can engage a criminal defense attorney to bring the matter to the attention of the authorities on your behalf. You might ask your attorney:

  • Can the behavior I’m experiencing support a request for a restraining order?
  • What kinds of evidence will I need to show the judge?
  • In our area, what are the chances that the police will take reported violations seriously, and investigate and arrest if appropriate?
  • What else should I do to stay safe?
Published in Practice Areas
Tuesday, 02 September 2014 00:00

Should you rush to file?

Many people have been led to believe there is an advantage to filing a divorce complaint first.  That's not the case.

The difference in being the party who files for divorce and being the party is who is served with divorce papers is negligible and one thing you needn't worry about.

Published in Blog
Tuesday, 02 September 2014 00:00

Starting Over After 50

There seems to be a lot of discussion about people over 50 years old getting divorced now.  Of course, there are a lot of Baby Boomers who are still alive and in relationships.
  • Many of them are suddenly facing a divorce they hadn't planned on.  
  • The flip side is that many Boomers have finally decided to go forward on the divorce they kept thinking about, but which they just couldn't face.  
  • And some couples in second or third marriages are also facing divorce as they pass 50 years of age.
Published in Blog
Wednesday, 02 March 2016 00:00

Divorce

Divorce Information – Petitions, Discovery, Settlement and Trial

Quattrone Family Law divorce attorneys work to ensure every client has the divorce information and family law resources they need to understand the divorce process and know what to expect before meeting with a family law attorney. A divorce can be a long process, and preparation is key in minimizing the length of your case.

Divorce Petitions

To obtain a divorce, the husband or wife must petition a court for a judgment of divorce. Attorneys usually draw up these documents for the Petitioner (otherwise known as the Plaintiff or person filing for divorce).

The initial petition often demands much more than the Petitioner expects. Do not worry if your wife claims that she cannot support herself and therefore wants you to pay all attorney fees. Attorneys often use the initial petition as a wish list.

In most states, the Respondent (also known as the defendant or the person who didn’t file the divorce) has a limited time to file an answer. The Respondent’s answer is usually brief, admitting or denying each assertion and asking the court to deny the Petitioner’s request.

With the Answer, the Respondent often files a Cross-Petition or Counter-Claim to set forth his position on the basic facts and the relief he seeks. It is always a good idea to file a Cross-Petition; without it, the Respondent could easily find himself at trial facing an agenda set by his wife’s inflated wish list. In most states, the Petitioner has a limited time to file a response to the Cross-Petition.

Temporary Motions

Early in the process, parties may file motions for temporary orders to address any pressing issue that cannot wait until the end of the divorce.

But most parties make serious efforts to arrive at an acceptable temporary arrangement without going to court. Avoiding temporary orders will help keep down attorneys’ fees and possibly create a more favorable impression on the judge.

Discovery

Discovery is the process of gathering information that will build and strengthen your case at trial. During discovery, you will gather favorable information about yourself for your attorney to present to the court.

But equally important is anticipating your opponent’s case. Winning a favorable judgment means you have to be prepared to deal with your wife’s allegations.

Settlement

It is common for cases to settle on the day of the trial and in some cases even during the trial. The settlement agreement has important advantages. A reasonable settlement agreement may allow you and your wife more control over your judgment. Many clients prefer to avoid the anxiety of wagering their lives on a judge’s decision.

Additionally, time and money considerations may lead to a settlement. You may wait one to two years for your trial, but meanwhile, both you, and your wife’s attorneys’ fees will continue to climb. These fees normally increase dramatically as the trial date approaches.

Finally, as tempting as it is, it is almost always a mistake to negotiate directly with your spouse, even when your attorney is in the loop. Any deals that you cut can create unrealistic expectations that will calcify into intractable positions. The litigation fallout from the miscommunication can easily double your attorney fees.

Pre-Trial Conferences

In many states, before trial, you might attend at least one mandatory settlement conference, also called a pretrial conference.These conferences force the attorneys for both parties to discuss the merits of the case, with the benefit of input from the judge.

Often, it is during pretrial conferences that both sides fully realize the emotional and financial expenses of a trial.Afterward, they may approach negotiations more rationally.

The demeanor of the judge during these hearings is very important.After hearing an overview of the facts, judges in some states may offer their opinion of the facts and offer suggestions on possible settlement.

Some states may require a mediation of status conference in place of the pretrial conference.

Trial

Although fewer than 5% of all divorces go to trial, this figure varies substantially according to certain factors, including salary level, length of marriage, and the wife’s occupation.  The length of your trial will depend on the time the court allocates and the number and complexity of issues to be decided. Your trial may last anywhere from a few hours to a few weeks.

The Petitioner presents evidence first by calling witnesses and presenting exhibits. Once the Petitioner “rests,” it is the Respondent’s turn to make his or her case. After both sides have rested, the Court may permit the Petitioner to present “rebuttal” testimony by responding to the Respondent’s evidence.

Most lawyers do not use opening or closing arguments in divorce trials, but some Courts do allow them.

Aftermath

Divorce proceedings can unleash a torrent of emotions ranging from anger to anxiety to depression. But as difficult as this experience is, you cannot simply call in sick, because your (and your children’s) interests hinge on your ability to push through and make rational decisions. So you must work to separate grievances that are meaningfully related to your children’s welfare from those that are offensive to you personally, however grave.

Remember that you are not walking this path alone. Your attorney will be your key advisor, but many of the pivotal considerations are not within his or her province. Therefore, it is usually helpful to seek advice from others whose knowledge and judgment you respect, including a counselor.

Always talk to your attorney first. Friends and family may help, but they also might pour gasoline on the fire. Knowing when to tune in also means knowing when to tune out.

Published in Practice Areas

If you need to hire a lawyer in order to protect your rights, you may want to pay a visit to Quattrone Family Law. Your attorney will provide the personal attention that your case requires. We’re available to assist citizens of Tampa and nearby communities while they try to deal with a range of family law matters.

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