Partner and Lead Litigation Attorney, Will Jones, joins us to discuss how military divorces differ from civilian divorces. In this podcast, he discusses:
-Military Member’s Protection from Default
-Dividing Military Retirement Benefits
-Child Support, Spousal Support and Military Pay
-Child Custody and Parenting Time in a Military Divorce
To learn more about how Landerholm Family Law and Pacific Cascade can help you with your military divorce, call our office at (503) 227-0200 or visit our website at www.landerholmlaw.com or www.pacificcascadefamilylaw.com
Disclaimer: Nothing in this communication is intended to provide legal advice, therefore you should not interpret the contents as such.
Welcome to Modern Family Matters, a podcast hosted by Steve Altishin, our Director of Client Partnerships here at Landerholm Family Law. We are devoted to exploring topics within the realm of family law that matter most to you. Our discussions will cover a wide range of both legal and personal issues that accompany family law matters. We strongly believe that life events such as marriages, divorces, re-marriages, births, adoptions, children, growing up, growing older, illnesses and deaths do not dissolve a family. Rather, they provide the opportunity to reconfigure and strengthened family dynamics in healthy and positive ways. With expertise from qualified attorneys and professional guests, we hope that our podcasts will help provide answers, clarity, and guidance for the better tomorrow for you and your family. Without further ado, your host, Steve Altishin.
Steve Altishin 1:12
Hi, everyone. Welcome to our Facebook Live broadcast. I'm Steve Altishin, Director of Client Partnerships here at Landerholm Family Law. Today I have Will Jones with me, our lead litigation attorney and managing partner, talking about military divorces and how they differ from regular divorces. So Will, how are you doing and would you like to talk about yourself a little bit here? Let us know what's going on with you these days.
Will Jones 1:37
Sure. My name is William Jones, I'm a partner at Landerholm Law. I've been doing nothing but Family Law pretty much, I do some other stuff here and there, in Oregon for a little more than a decade. I'm happy to be talking about military divorce--it is a mess. It's really difficult for a lot of attorneys to handle. It's much, much different. You're dealing with a whole bunch of federal law. And it took me a very, very long time and a lot of help to actually get up to speed on this stuff. And there's still a ton of attorneys out there who will just turn these away and go, not for me, and there's even more attorneys who take them and need to know.
Steve Altishin 2:11
Wow. Well, thanks for being here today with us then. It's really important for people to get themselves to the right lawyer for the relevant issues that they have. So before we get into details about the different rules and the different procedures that are involved in military divorces, let's start with a basic question for folks. What makes a regular divorce a military divorce? What's the definition? I'm assuming we're not talking about a divorce that's handled by a military judge.
Will Jones 2:47
So the general process of the divorce doesn't necessarily change. There's a lot of different hooks and things that exist when you're dealing with DFAS, when you're dealing with service member spouses, when you're dealing with veterans. The factual underpinnings change a lot. The actual process through the court, it's still the state court, it's still the Oregon Rules of Civil Procedure-- it still follows that track, with a few caveats. Servicemembers Civil Relief Act, and things and timelines change a little bit, but it's the same process. But the pieces that you're dealing with and possibly dividing are drastically different.
Steve Altishin 3:27
Which makes me wonder, why is that? I'm assuming the reasons behind it are because the situations of military members are very much different than that of a lot of other folks. So let's start with the rules. Let's start with procedures first. Excuse me for being super basic at this point, but I kind of want to get a groundwork on this. So let's start with, speaking of groundwork, the grounds for divorce. Are the grounds for divorce different in a military divorce from a divorce let's say in Oregon?
Will Jones 3:58
Nope. It's still a no fault state, still no fault is required. If one person wants to get divorced, that's it.
Steve Altishin 4:04
So that's the same. What about residency and filing requirements? Do those change in a military divorce at all?
Will Jones 4:13
Now you're getting into where you get into the some of the tricks and some of the confusion here. As we all know, a military service member may be stationed somewhere if they're out on orders. And that brings in this Servicemembers Civil Relief Act, which basically says, Hey, hold off on all litigation while this person is under orders, whether deployed, or something like that. Now, that protection can extend up to a year past when the service member leaves the service or is discharged, whichever way it goes. So your timing there changes a lot. So even if you can get a service member served, which is a little more difficult as well, there's a part of the Code of Federal Regulations that actually deals with serving servicemembers. In Oregon, if you serve somebody they have 30 days to respond, but if they're servicemembers, that's a whole different thing. The same protections can be held true for a service member spouse, it's actually separate federal legislation that covers spouse. One of the major issues is where do you file these cases when you have, say, someone who's in Sudan? When people sign up for the military, they say, 'This is my legal residence'. Say they came from Oregon, and now they're stationed in Texas, right? Their paperwork with the military is gonna say, 'Hey, we pay Oregon taxes on this guy. This guy has his legal residence in Oregon.' That's different than their home of record. Home of record for the military determines how much they pay you to move, things like that. But it doesn't tell the military where to pay taxes, or where they're subject to service of process. So it gets a little strange when you start dealing with someone who is, say, stationed in Texas, but is an Oregon resident, and maybe you have a wife who lives in Washington, right? Is she a Washington resident as far as legal process? Or is she a service member spouse who is registered in Oregon? You start to get into some very tricky, confusing issues as to where do you even file these things?
Steve Altishin 6:13
That would also bring in then, I suppose, how you serve an active duty person in the military. First of all, what if you can't find them? Let's say you've been separated for four or five years, and you don't really even necessarily know where they are. You know they're in the military. How do you go about trying to circumvent?
Will Jones 6:36
That can be a little bit challenging, to say the least. Hopefully you know at least where they're stationed. If you know where they're stationed you can usually can get a hold of, well, I guess it depends on what member of the military. But to keep things simple, usually you can just contact their CO, their commanding officer, and go, 'Hey, where's this person? How do I get them served?' The Code of Federal Regulations is basically to say, 'Hey, just go ahead and serve the base/ the CO, and they'll get it to the person who may actually be out in the field.' So it takes a little bit of finagling to kind of figure that stuff out. DFAS, who runs all this stuff, they do a pretty good job of helping you locate servicemembers, because obviously, they need to be located for other reasons as well.
Steve Altishin 7:20
Let's talk about the process of getting a divorce finalized. Let's say a service member doesn't answer after being served. Generally, you can go to a judge and say I want to default. Does that change at all with military members?
Will Jones 7:35
It changes a lot. So even in the stuff that we do here when we take a default, there's actually a paragraph that we're required to put in there that says, 'This person is not an active member of the armed forces', right? That's that Servicemembers Civil Relief Act coming kind of to light even when you're not dealing with a servicemember, and that's because that protects from default anybody who's active duty in the military. So you've got to take some special precautions if you think you're going to get a default to go, 'This person's in, but he's not active duty'. It kind of depends on your situation there a little bit. But defaulting a service member is exceedingly difficult, and generally just not advised. Because it's very easy to set aside a default when you're dealing with a servicemember.
Steve Altishin 8:18
That makes sense. They may be active duty, they may be deployed, there may be a valid reason for why they can't answer at that point. Beyond just the procedural issues-- the serving, the getting of the person served, the filing for a default, those kinds of things, deciding where you want to file--going past that to the substantive issues, let's start with division of assets. Is the division of assets different in a military divorce, and does that apply to all of the assets or just some?
Will Jones 8:56
The division itself--the functional percentages, if we're dealing with it that way--that's not necessarily different, right? The part that's different is how you go about the division. So the state court is going to say, 'Hey, look, you get 50% of this, you get 50% of that.' Well, you might be dividing, say, a military pension. That's federal. Right? So now you're talking about a state court telling federal people what to do, which conceptually can't happen in most situations. So as you deal with those concepts, you have to start going, 'Hey, how do I divide federal benefits in some way that the state court can have control over it?' So the percentages don't change. The method of division changes a lot, and there's a ton of pitfalls as you start dealing with the actual functional division.
Steve Altishin 9:53
Are there assets that are being treated differently under military or federal law? I've heard that pensions can be a whole different animal.
Will Jones 10:02
So military pensions, let's kind of define what those are. A military pension itself is very similar to a lot of other pensions. Almost all military members now are on what's called a High-3, where when they retire, we look at their highest three years of average base pay, and then you get a percentage of that. So you average out three years, then you get a percentage. That percentage is determined by active duty. For every year of active duty, a military member gets 2.5% of their high three years of base pay, if you're following that math. The trick, if you want to call it a trick, is that that doesn't vest until they have 20 years of active duty, right? At 20 years times 2.5%, that's 50% of their base pay. If a military member is discharged at year 19.5, if they leave the military, anything like that, their pension is gone. It never existed. It never vested. So when you're looking at dividing some of these things, say you've got a service member who's been in for 19 years, and you're going to divide the pension. Well the pension doesn't exist, because it hasn't vested. Now, functionally, for my practice, and for what most people should be doing, you can still divide that. But the non-member spouse is taking a risk that it never comes to fruition. Right? That's just one piece. As you continue to deal with the pension, and usually the pension is the largest piece of any asset division, because you end up with, say, a 39 year old who could have 20 years in. Now from 39 until they pass away--mortality table says they'll die at about 79--so they've got 40 years of getting half of their base pay every month for the rest of their life. Right? And they may have lifetime health insurance. So huge amounts of money are usually contained within the military pension. The trick for the non-service member spouse is making sure that they can get that. So here's where one of the hugest pitfalls, malpractices all over the place, come. Say a service member is getting $2,000 a month in military pension. What any service member wants financially, not physically, is to become disabled. Disability pay is a credit dollar-for-dollar against the pension. So if you have someone who had a military pension of $2,000 a month that is now 100%, disabled, or classified as 100% disabled, their military pension pay is gone, and it's replaced by 100% disability pay. Disability pay is not taxable. The pension was, disability pay isn't. Here's where the huge piece of malpractice happens. Say you divide that $2,000 a month in half, right? $1,000 to non-service member, and $1,000 to service member. Service member goes out and gets a disability classification of 100%. All that pension, it's a dollar-for-dollar credit, is gone because now it's disability pay. Now the service member is getting all of that disability pay, and the non-service member is getting nothing because you cannot divide disability pay. You cannot. So then you're in this practice area where you're going, 'How do I secure something that can be replaced by disability?' If you don't, your non-service member just got nothing, because this person ended up with a disability designation. Do you follow me on that one?
Steve Altishin 13:33
Yeah. That sounds like something that's really easy to screw up if you're trying to advise your client, and you haven't had the experience in a military divorce. That's just not something that most people would think about.
Will Jones 13:51
Well in Oregon, say you have a government employee, you have PERS, right? Still a pension, operates in much the same way. You still gain years of service, it works much the same. But when you divide PERS, PERS creates a whole separate account for the non-participating person. Now that's theirs, and the other person can't touch it at all. And there is no disability credit in PERS. So you take attorneys who have been doing this for a long time, and it's their first military case, how would they even know to look for that? Why would you look for that? Because Hey, I've divided who knows how many pensions in my career, and this one is the different one? Where did that come from?
Steve Altishin 14:35
Is this the same in all arms of the military? Are these the same rules that apply if someone's in the Army or the Navy or the Coast Guard? Or do they have even some separate rules themselves on top of that?
Will Jones 14:46
The basic functionality doesn't change. There are different sections of the Federal code for Army, Navy, Marines, etc. But retirement, for the most part, is pretty consistent across the board.
Steve Altishin 14:53
Will Jones 15:04
So the other piece that people need to be very wary of as well, is the spousal benefit plan. It's an amazing program, it works unbelievably well. And what it says is, if you purchase, because you do have to buy it out of your retirement pay, if you purchase a spousal benefit plan, when the service member passes, the non-service member gets 55% of the total pension payment for as long as they live. Right? And it's something you have to buy. So it comes out of the retirement pay, it's based on kind of what the pension amount is. But without that, say the service member passes, now the non-service member has a problem because of the way that pension works overall. So you've got to be really wary of that. And in the judgment, which is what closes the case out, you need to reconfirm that in the judgment. If you don't have and that service member dies, you've created a large problem for, hopefully not your client, but could be your client.
Steve Altishin 16:03
So now let's turn to child support, spousal support, military pay, they're all sort of intertwined. Are there special considerations regarding those issues that are unique to military divorces?
Will Jones 16:19
This one's a little bit tricky. So a service member without dependents is required to live on base, right? So no dependents, you're required to live on base, they've got a commissary, you eat your meals there. That's kind of the way that that works. When you have dependents, now you don't have to live on base. You still can, but you don't have to. When you have dependents, the military is going to pay you BAH, Basic Assistance for Housing, which is on top of your base pay. That allows you to live off base, buy groceries, all that stuff. One of the things that you see every now and then when you do a bunch of these cases is opposing attorney looks at this service member and goes, 'Oh, you have $3,000 in base pay and another $1,500 in this entitlement.' Well, when the divorce is complete, no more living with dependents, no more BAH. And what a lot of people want to do is count that as income. It's not income as soon as that divorce judgment is done. So that's a huge pitfall, and one I've argued many, many, times, because I have someone on the other side who just doesn't know that. You look at that and think, 'Well it's income, we have to count all the income, and it's here now, so...', but it won't be as soon as we sign this thing. Also, there's an entitlement to BAH for the non-service member while the dissolution is pending, or even before, because it's meant to support them as well. And usually a call to the CO of the servicemember to go, 'Hey, there's no support happening here'. We'll redirect some of that BAH to the non-servicemember. Now, child and spousal support, the rules that govern those, they don't change because we have a service member. What does change a lot is parenting time, because now you have one parent who's a service member who might be on orders over here, orders over there. Now they're overseas, now they're stationed here. So parenting time becomes somewhat difficult, because they don't know where they're going to be, and neither do we. And is it going to be appropriate? So a lot of times you see parenting plans, in some of these cases, where it's, 'When I'm on leave, we'll do this'. And that's really kind of the best you can do.
Steve Altishin 18:23
Are these issues familiar to the judges? Going back to some of the support issues, in Oregon, you fill out a child support form and it says, What's your income? And if someone lists their housing as income because they actually have it, does a judge know, necessarily, 'Oh, you need to make sure you take that out'? Or is that something you, as an attorney, better make sure that you put in front of the judge?
Will Jones 18:58
Oh, everyone who sits on the bench in Oregon is a perfect person and an absolute genius! It's something that, as an attorney, you want to make sure is unbelievably clear. Because, you know, judges come and go. There are some judges who've been on the bench for 20-30 years, and have heard this all the time, and there are other judges who it's their first year. So it's something you definitely want to make super clear, and you want to have the law and facts to back it up. It's not something you want to just assume that people know, because it's a different world out there. It's something very specific. And if you have a judge who's never heard this stuff before, you just don't know. Unfortunately, we don't have a list of the issues that judges have heard in their career. Now there are some judges that I have appeared in front of on this issue, and maybe I don't need to explain it that much. But you look at someplace like Clackamas County, they revolve judges, so you don't know who you're going to have until the day before. So you better be prepared to explain some of this stuff.
Steve Altishin 19:55
That makes sense. Touching again on child support. Is there a vehicle inside military rules separate from what a judge might order when it comes to supporting their children? I've heard that you can go directly to, for instance, a superior officer of your spouse and say, 'I'm not getting support'. Is there anything that you can directly do with the military in those kinds of cases?
Will Jones 20:23
Yeah, most definitely. That's when a portion of that BAH, because there's an entitlement to the non-service member, some of that BAH is meant to support the dependent. So yeah, there's a vehicle to be able to get that done. And usually the way that we do that is we just contact their CO, and it tends to work itself out that way.
Steve Altishin 20:42
If a person that you're getting divorced from has a child support obligation, but is not paying it, I know in a lot of states you can have a garnishment put on that person. Does that change at all by the fact that their employer is the military?
Will Jones 20:58
Not necessarily. The only time that you're really going to see a very significant difference in that is when it's a disability pay, because disability pay is non-divisible. So if you have someone who's 100%, disabled and receiving only disability pay, now you got to do something else, because you're not going to get that from DFAS. It can't come from there because they can't divide it.
Steve Altishin 21:22
We talked a little bit about child custody. I want to touch back on that again, for a minute. The fact that a military member may be on active duty moving around a lot, etc., is that a determination that goes into who has custody? Is that something that can, I would say, penalize someone who's in the military?
Will Jones 21:49
'Yeah' is really the answer to that, although not necessarily in a negative way. So any case that comes in that has custody and parenting time, I tell everybody the same thing: the only fact that doesn't ever bend in a custody and parenting time case is, what are people's schedules, right? That's the only thing that I can tell you is going to make a huge difference. Because everything else is a battle. This person takes longer showers, well, that person drives too fast. Well which one of those is better? That's the difficulty in custody and parenting time. But when you're talking about schedules, I'll tell you, it's the same adage that I've been told for years, judges understand the need for daycare, but they don't like. So if you have a willing parent that's available and can do it, who has some capability, why wouldn't we put the kids with the parents, instead of putting them in daycare? And that's the problem for a servicemember. If they're getting bounced around the country then the kids are going to get bounced around too, but they're not available to care for the children. If the non-service member is available and capable of doing it, we're just going to give the service member a daycare bill and put the kid with a stranger? That just doesn't happen very often. There are some cases where you have the non-service member who is incapable of taking care of children. Now we have some things that we need to deal with, and some things to work out. And some service members are just like, 'Look, I'm gonna have to leave the military because, you know, I was relying on this person and now that person has traumatic brain injury and can't take care of our kids, so here I go'.
Steve Altishin 23:25
Fascinating. If a person comes into you and say they are the military member, and they say, 'Hey, I'm contemplating maybe getting a divorce'. What is the general advice for preparing for that? Are there some kinds of tips to just prepare yourself as a military member for getting a divorce? Because a lot of these issues are going to come up and maybe some of them can be dealt with, or at least it helps to prepare, to get ahead of the curve a little bit.
Will Jones 24:08
So if I'm on the service member side, the big questions I want to know are, how long have you been in the service, and how long have you been married? Right? Those are two key components. Those are key components in almost any divorce but very, very strictly looked at by the Fed, overall. Have we met the 10/10 rule? Are we at 20/20? 10 years in, 10 years married, and they overlap: 20/20. 10/10 means that the non-service member can be paid directly from DFAST. 20/20, now the non-service member has free lifetime health care. Right? So those are two major components because, obviously, free lifetime healthcare. That's a great deal overall. The next piece that I need to talk with a service member about is that we're going to divide your pension, or we're going to have to offset it with something else. And you would be shocked at how many people go, 'No, we're not going to do that'. Well, that's the law, there's nothing I can do about that. Unless they're going to walk away from it, but they almost never do, it's going to be divided. For some service members, they just never thought about it. And I've had servicemembers in my office going, 'I got shot at, it's mine. No one's ever going to touch it'. Unfortunately, they are. And that's just the way that's gonna work. Continue to support your spouse, even when you're separated, unless they have a means for their own support-- and when I say means for their own support, that's not 'Well they could'. No, do they right now, or have they? Because one thing judges hate is that financial control. Let's keep everybody afloat. We'll figure it out as long as everybody's floating. If you go to court and say, wife's at home with the kids with no money and can't pay the rent and can't buy the kids groceries because the service member isn't giving them anything, that judge is going to have a heyday with that servicemember and go, 'No, no, no, no, no'. And you're not going to like the outcome of that case very much. So continue to support your spouse and let's get you through this. We want to get you done as quickly as possible because as time passes, they're getting more entitlements, more things, and you're losing more.
Steve Altishin 26:18
Moving quickly to the concept of amending a decree because of a change of circumstances, such as changing where you're deployed, or maybe if you stopped being deployed, or you've gone into reserve status, are there issues here that people should be aware of? Or is it similar to other divorce issues where you're trying to amend the decree of parenting time, custody, or support?
Will Jones 26:44
Just to be clear, when you're modifying some manner of judgment, like custody, parenting time, child support, you can't amend property division. It's closed when that judgment is done. So we can't go back and reallocate more pension because now he's got it, right? Custody, parenting time and child support- that generally tracks Oregon law. The parenting time, anytime it's in the best interest of the kids. Custody, whenever there's been a substantial change, and it's in the best interest of the kids. Child support, whenever there's been an unanticipated change in financial circumstances. Spousal support is a little more difficult, kind of depending on what variety of spousal support, but it is modifiable assuming it hasn't terminated. Because you can't modify spousal support once spousal support is over. You're not modifying it, now you have to recreate it, and that's not allowed, generally. There are a couple of weird hooks in there where it can happen, but super rare. So being a service member, other than maybe some jurisdictional issues--they've moved here, this person no longer resides in Oregon, those things can happen-- but other than that, it pretty much tracks Oregon law.
Steve Altishin 27:48
This is really great information. I guess the last question I have is, do these rules change depending on the status of the military member, or the service member? Do they have to be deployed, do they have to be active duty, does that make a difference?
Will Jones 28:08
It can make a difference when you're talking about service, and when you're talking about maybe taking a default judgment, or when you can require them to appear in court. Because the state court doesn't have the ability to override their orders to pull them in. So if they're deployed, the state court can't say, 'You're undeployed'. Military doesn't like that so they don't let that happen. So some timing issues, yes. Structurally, yeah, it could cause delays, it can cause problems. But still it tracks the same way.
Steve Altishin 28:37
This is great stuff to know. Well, we've hit a lot of topics today. Is there anything we haven't hit that you would like to talk about? Or any issues that I haven't asked you about?
Will Jones 28:50
Not necessarily. One thing that kind of deals with child support is TRICARE. So military insurance, and dependents qualify for that. So in your child support calculation, obviously, there's no cost for that, and the military member will be required to continue to provide that. I think up until 21, maybe 23, I'd have to re-look as far as where TRICARE stops. For non-member spouses, there are some health insurance options similar to Cobra, if they haven't met the 20/20 rule. So there are some kind of weird hooks in there. Also, when you're looking at the Leave and Earning Statement, an LES, that's basically a pay stub for a military member, there may be things like hazard pay, depending on where they're deployed to. And you need to kind of look at their status to see if that's going to stay there. So there's a lot of very small, very, very detailed hooks, that you really have to be super familiar with this stuff. Because, say you got, you know, somebody who doesn't meet the 20/20 rule for health insurance. They're 20/19. Well, at 19 years, they're going to get another year of TRICARE. They're not getting a lifetime of TRICARE, they're going to get another year. And then they may qualify for that Cobra protection until they can find something else. So hyper-detailed area of law. Very, very easy to screw up if you've never seen it before. If you're a military member or a spouse of a military member, talk to somebody about this stuff. I can't envision anybody trying to do this on their own. There's lots of great resources out there. There's lots of stuff online. And I've done lots of consults where I go, 'Whoa, wait, wait, wait, wait, wait. I know you read that online. I understand that. But we've got to peel this back and here's how it's gonna work'. Just a ton of information. I'm sorry it's coming out of my mouth so fast. I'm sure I'm forgetting something, because there's a lot to do here.
Steve Altishin 30:35
You know,, listening to all of this really emphasizes that there are a lot of nuances involved. I mean, somebody may come to you at 19 years and six months of service, and they've been separated for a long time. I mean, even when you can file becomes an issue. So thank you, Will, for being here today. Really great, gave us a look into military divorces. And like you said, there are just unique differences, and there are unique proceedings, and you absolutely need to have counsel that understands what's going on. It's great to have someone to talk to about that and who understands those differences. And so also, thank you everyone for joining us today. If anyone has any further questions at all on today's topic, you can post it here on Facebook Live or you can shoot me an email at [email protected] and we can get you in contact with Will. And other than that, everyone, again, crazy times, so stay safe, stay healthy. Have a great day. See you next time.
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