Modern Family Matters

Military Divorces & the Tactical Division of Assets and Military Benefits

December 22, 2021 with Pacific Cascade Family Law Season 1 Episode 40
Modern Family Matters
Military Divorces & the Tactical Division of Assets and Military Benefits
Show Notes Transcript

Join us as we sit down with Attorney, Robert Howell, to discuss how military benefits are typically addressed in a dissolution case, and important things to know to help protect your rights and prepare for the process. Robert and Steve discuss the following:

  • Why rules for military divorces differ from non-military divorces.
  • Can you even divorce an active member of the military?
  • Understanding how military benefits can change based on deployments, base transfers, and combat orders.
  • When military pensions can be divided in a divorce – and when they can’t.
  • The importance of knowing the various elements of a service member’s pay.
  • Benefits that are unique to military spouses and children and can be continued after a divorce.
  • ...and much more!

If you would like to speak with one of our family law attorneys, please call our office at (503) 227-0200 or visit our website at

Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.

Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.

Steve Altishin  0:31  
Hi, everyone. I'm Steve Altishin, Director of Client Partnerships here at Pacific Cascade Family Law. And I'm here with Attorney Robert Howell to talk about military divorces. Today we're going to focus in on how military benefits are treated in a divorce. So before we get started, Robert, can you tell us a little bit about yourself?

Robert Howell  0:53  
Sure. I grew up an Air Force brat. So my early life was all about living on base and moving from Maine to California. And later on, I entered the entertainment industry and was a designer for years. And then I adopted my youngest child from the Department of Children Family Service. And he was my inspiration to go to law school. And so after getting out of law school, I focused on the issues that were important to me, which included dependency adoptions and things like that, and military issues, since that's how I grew up. 

Steve Altishin  1:40  
Well, that's perfect for today, because we're gonna we're gonna try to hit military divorces, and all of the intricacies that are involved in that. And so, what we're going to do today is we're going to focus mainly on military benefits. And Robert and I, afterwards, maybe in a month or two, we're going to have another one on support, parenting time, child custody, those kinds of things. But today, we're going to try to focus more on military benefits. And so let's start with just a basic question. What determines if a divorce is a military divorce?

Robert Howell  2:20  
One of the parties has to be an active member of the military, and or the other party or one of the parties is retired from the military. And when the divorce happens, they're looking to divide the pension that that active duty member hadn't received or still receives.

Steve Altishin  2:37  
That makes sense. So before we get into sort of the subsidy of military benefits, aren't there differences in some of just the procedural stuff that goes on with military divorces? You know, for instance, and the grounds for military divorce different than they are in the state of Washington?

Robert Howell  3:01  
No, it's still irreconcilable differences. 

Steve Altishin  3:06  
So the same old, same way to get divorced. How about residency or filing requirements?

Robert Howell  3:15  
That's one of the ways that Washington is kind of neat, is that it does not require any particular term of residency just that you live here, and that the parties are in the state when the action is filed. Particularly with military, a lot of times military service members hold residency in the state that they were born in. My own father was born in Ohio, and throughout his military career, he maintained his residency in Ohio. But even with that, if they're stationed here, or here for some other reason, the court can obtain jurisdiction over it. 

Steve Altishin  3:55  
Well yeah, because like you said, they're moving around, and they're going to be somewhere. So how about, you know, serving an active duty member of the military, is that different from just a civilian divorce?

Robert Howell  4:09  
Yes, and depending upon the base, it can be more or less complicated. More often than not, if you need to serve somebody and they work on the base, then you need to arrange with the base commander, either directly through their office or through the JAG or the legal assistance office on the base, to have the party served, which can either be--normally what we do is our person who is going to serve will go to the base, and their name will be on the list at the gate there. They get to go in and they will go to the base commanders of the JAG office. And then the party is called in and then they can be served right there. And the military is usually very cooperative, but it can be a little bit daunting for people who've never had to deal with going on a military installation. Now, the only exception to that is if the active duty service member is deployed. If the person is deployed, you cannot start a proceeding for divorce, as long as they're deployed. 

Steve Altishin  5:21  
You can't serve them at all? 

Robert Howell  5:23  
You can't serve them at all, because their destination, where they are supposed to be, is secret. And so the Soldier and Sailors Relief Act specifically says that a member of the military, any service, cannot be served with divorce papers while they're deployed. 

Steve Altishin  5:41  
What about getting a default, or requirements for a military member to respond? Are there differences there in a military divorce?

Robert Howell  5:53  
Not really. They can still, I mean, the parties can always choose to come to some sort of settlement, in which case the military member does not need to respond. But if they are served, they should respond. The problem with being in the military always is, whatever legal protocols are in place, you want to make sure you follow them because it can have repercussions with your command. And if somebody, if the other party, other spouse, decides to call his commander, and let them know that this proceeding is going on, he's not cooperating, then they get called on the carpet. So there's a little more pressure on them to comply with any kind of legal situation so that it doesn't come back and affect their military performance.

Steve Altishin  6:51  
It kind of answers what my next question is, which is kind of the 'why'. Why are these different? Why are military members treated differently in these procedures? And like you said, a lot of it's got to do with the fact that it's the rules of deployment kind of stuff.

Robert Howell  7:08  
Yeah. And they're just under a lot more scrutiny than your average citizen. So you need to, as an attorney, I'm always cognizant of that fact, and try to work with the military in any way that I can, so that we don't, in any way, impede this person's career.

Steve Altishin  7:33  
Well, that makes complete sense. Let's talk a little bit about dividing assets. And while they're not quite the same, we sort of lumped dividing assets and dividing or transferring benefits, since they kind of fall into that same sort of thing. But just a 10,000 foot view of dividing assets in general, does that differ if they're in the military than in Washington where, you know, we're a community property state?

Robert Howell  8:07  
Not really. I mean, it's going to be the state laws that control, and in Washington, since we are community property, then that's what's going to guide the court. But the court still has the authority and the jurisdiction to divide all assets. And that includes their military benefits and or pension.

Steve Altishin  8:27  
And that's sort of where the uniqueness comes in, because dividing military benefits has rules that are federal, as opposed to state involved as well, don't they?

Robert Howell  8:45  
Yes. And that's where the real kick comes in for an attorney, is making sure that you are aware of the federal rules that control, and also make sure that your judge is aware of them, so that an order that is made with regards to any kind of benefit is formatted in the way that the military wants, and they're very particular. So you have to be very careful within your order that comes out of court.

Steve Altishin  9:17  
Are there any restrictions or other sort of things that you need to also be aware of in terms of military divorces? I know that on a lot of their benefits, you have to be married for a certain period of time, they have to be in the military, sometimes it has to overlap. How does that work on a pension?

Robert Howell  9:40  
Well, there's a lot of information out there. People go by what they call the 10/10 rule, which is that you'd have to have been married for 10 years and the person has to be in the military for 10 years before you can obtain any of their benefits or retirement. That's not really true. Particularly, Congress in 2017, through the National Defense Authorization Act, revised the law from what used to be known as a time rule. And now we use what's called the frozen benefit rule. Frozen benefit rule simply means at the time of the divorce, the retirement benefit to the other spouse is going to be based on the servicemember's time in the military and their rank, and is supposed to freeze at the time of the divorce. But one of the catches to all of that is that if the divorce is not completed, and signed off in the order and then made an order of the court, then you can have all sorts of situations that are not going to be fun. Say with the divorce , everything is addressed the agreement, but then they don't get divorced for five years. And at the time,  the military member, where he was a major before, is now a colonel, he's got five more years of service. So now the previous order is not correct, because it doesn't give his correct frozen benefit point, which is when the divorce actually happens. So it's very important that once the order is written that the divorce is finalized, so that the Defense Department, the pay section, gets an order that's correct at that time, and you don't have to go back and modify it because things didn't get finalized. 

Steve Altishin  11:40  
So I know in some regular civilian pension plans or retirement benefits, there is kind of a two step process where the judge says, Okay, you're going to get X amount, and then Y is it goes to the person who's running the retirement account, what they call the plan administrator. And the plan administrator has to actually agree to that for them to pay. And is that sort of the the same way it's working in the military, where it's a matter of to get the military to pay, you have to go through all these extra hoops?

Robert Howell  12:30  
That is the biggest question mark, anytime you're trying to attach a retirement or pension and get it paid out to the other party. The military, which is not surprising, is very strict about their format. And if the documents you send them aren't formatted in a particular way, they'll simply reject it, and send it back to you for further modification. Which means you might have to go back to court. And this can go on more than once. So it's very important that you-- a lot of times it helps to contact the defense pay department and get information from their legal services exactly how the wording should be, so that you don't get these rejections and have to go back to court to modify your judgments based on what the military is telling you they'll accept. So it can be a vicious circle for you if you're not really prepared.

Steve Altishin  13:33  
When we say the military, is it a Washington DC office that handles every aspect of each military? Or are you looking at, well, maybe it'll be different from an Air Force pension or, you know, Navy pension?

Robert Howell  13:59  
No, it's the Defense Department of Pay. That's who you contact, and that's who you work with. So it doesn't matter what branch of the military you're dealing with, you're going to be dealing with the same government entity to get the division. 

Steve Altishin  14:16  
Is there any limit on how much they'll pay? I suppose you could, if a judge could say just depending on the assets of the divorce, or the needs of each of the people, that you're going to get 90% of this person's IRA. Are there limits in the military to stuff like that?

Robert Howell  14:47  
Yeah, the the non-military party to cannot get more than 50%. But there are other ways the court can offset a division that they feel it'd be more equitable. And that could be through spousal support. Or what also happens a lot is retirement benefits get modified, because the military member qualifies for a disability, and the disability reduces their retirement. And then suddenly, the former spouse is getting less money because less money is being paid out from the pension fund. And you then might have to go back. And this is where the real gray areas come in for the court, of how they can fill that gap. If there is a spousal support order, that might be one way that they can do it.

Steve Altishin  15:45  
Can you just ask a judge, Washington judge, to say, 'Well, we understand the military is only going to give X percent, but I'm going to order you to pay part of what you receive to your spouse'?

Robert Howell  15:58  
I believe, right now, there are a couple cases that have gone through the appellate court. And it's really undecided law as to what authority a civil judge can exercise over the division of the military pay. And a lot of the case law that I'm reading on it is just all over the board as to what they're allowing. And so I think at some point, either our state legislature or the military is going to have to clarify these kinds of questions, because they're just not, there's not the law there for them yet. There are decisions but not law.

It sounds like having an attorney who understands the military part of it, is not just essential for getting the VA benefit payment out, but then determining the whole rest of the divorce settlement, because that's going to be potentially, I imagine, a significant part of it.

Right, and then there's another spin on all of this, which happens to be a case that I just picked up, and that's if the party is already retired, the military party's retired, but the spouse was with him for his entire military career. So she is entitled to part of that pension. But now you're dealing with a pension that's already being paid out to the other party. And so you need a different set of orders. Because you have a pension that's in place, the only thing that really helps is we already know the amount, right? And therefore, it's fairly easy for the judge to order 50%. And there's some debate too, as to whether the order should be a dollar amount or percentage. I myself prefer a percentage, because if the payout to the military person is going to increase over time, because they get a cost of living adjustment every year, and therefore, rather than lock your client into an amount that they get that's kind of gong to be forever, you give them a percentage, so they always will get that 50%, no matter what happens to the pay of the military person. 

Steve Altishin  18:31  
And so 20 years later, 10 years later, when it starts to payout after a divorce, you don't have to go back, if you do a percentage, to then determine what that dollar amount would be. They would figure that out.

Robert Howell  18:47  
Correct. So when the Defense Department gets that kind of order, they're always going to know that they have to update the payments to the other party based on the court order, which is 50%, as opposed to some dollar amount. And as a lawyer, I think that's more of an obligation on our part, to ensure our clients rights are protected over the long term, so we don't wind up going back to court. 

Steve Altishin  19:16  
Oh, that makes sense. I mean, it's kind of that idea where you're trying to find the future value, and you come into a number, but the number isn't necessarily going to be right, you know?

Robert Howell  19:28  
Right. And I know, my own brother who retired from the Air Force as a major. I think he started at, this is 20 years ago, probably $17,000 a year, and now I think it's $31,000 a year that his retirement pays. So that's a significant difference. And you want to make sure if you represent the former spouse that you're protecting their rights, knowing that that's going to be the long term case.

Steve Altishin  19:59  
So what happens if you divorce a private or a corporal, and years go by and years go by, and at retirement time, they're now a colonel.Can you go in and change, or do you have to deal with that at the beginning, or how does that work?

Robert Howell  20:18  
Again, it depends on the time of divorce. With the new rule, it's time served plus rank. And again, I go back to my brother, my brother was a non-commissioned officer for the first 10 years and then went to OCS and became an officer and retired from the military as a major. So he'd greatly increased his ability on his pension, because the fact that he went from a non-commissioned to a commissioned officer. And so again, to protect the rights of a former spouse, you want to make sure that at the time of divorce, that information is correct when it goes to the Department of Defense.

Steve Altishin  21:00  
Wow. So this sort of barrier, 50%, what if you're not the first person to divorce that person? Is that 50% switched? Is it just an overall limit? So that, you know, if someone already has 50%, you can get nothing? How does that work?

Robert Howell  21:22  
That's an interesting question. But it's, again, going to depend upon how long the marriage was. Because that also factors into how much of the retirement you're entitled to. If you're there for the entire time, you're going to get that 50%. If you're there in the marriage for only five years, although the state of Washington still allows the division of retirement paid, they're going to base it on that fact that you were only present for five years of this person's service. So you may get 10% of their retirement day, but no matter what, you should never, the federal law really prohibits any taking over 50%. Even if there are multiple parties, the court is going to have to be cognizant of the fact that they still can't take more than 50% of the pay. 

Steve Altishin  22:20  
If the spouse who is awarded a part of this pay gets remarried, are there issues there? Is it like spousal support or alimony where it could potentially go away?

Robert Howell  22:38  
Yeah, that's a very common question. And the answer is no, it never goes away. It is a right to the party that receives it. And their marital status, income changes, anything, does not affect their right to continue to receive that amount for their entire life. 

Steve Altishin  22:59  
Got it. I believe that there are different things involved in military pay, as well as military retirement benefits, that could go on. As you mentioned, disability, do they all get put together and you get that X amount, 50%? For instance, you said there's a disability potentially, so you're paying some disability, maybe that reduces some of what I guess what you would call your normal retirement. I don't know if there's other kinds of retirement that can go in. How is that all treated?

Robert Howell  23:46  
Let's say a veteran gets, the VA determines that he's 30% disabled, and that 30% will come out of their 50% of their retirement, or out of their retirement in total. And that's where the other party is going to get affected. But the benefit, the amount of the benefit or retirement, doesn't change for the service member. But the amount that's coming out of the pension versus the disability is going to change. And again, that's going to affect the rights of the former spouse. And so you might have to go back in for a modification to deal with that issue. The one thing if you ever see a pay stub from the military, it's very unique. Because there are all sorts of allowances they get. The most common and the biggest one is usually a base housing allowance. If the party is not going to live on base, depending upon where they're stationed, the average I've seen is between $1,800-$1,900 a month, which is added to their paycheck. But that doesn't accrue to their military pay/pension. So there are elements that are on their paycheck to which they're getting paid. That's also overseas duty pay, combat pay, all of the those will factor into their retirement. So there's a lot of complexity when looking at how a military person is paid, and what part of that pay is going to accrue to their retirement. And, again, if they got deployed, they got injured, and they're on a disability, they could also get 100% disability, which is a problem, I'm just now coming to realize, because that terminates their retirement, because they're on disability. And if the disability is 100%, that's usually not touchable, in terms of awarding to former spouse, that's going to be problematic. I haven't seen a case yet where that's addressed. So I'm not quite sure how the courts going to deal with it. 

Steve Altishin  25:59  
Yeah. Generally, I think, the rule is that if you make a property settlement, 'I get the house and you get the bank account,' you can't come in later and modify that. You don't really get two swings at that. But I am wondering if military benefits like this have a little bit of a different view by the court because of just kind of what they are. And like you mentioned, if the military member becomes disabled after the divorce, the pension, which was already decided, goes away or is reduced. Is there a way to modify either in the Washington courts or with the military, any sort of way to to compensate for that?

Robert Howell  26:48  
It's going to depend upon the form of the judgment. Normally, when an order is made for the division of a pension, you still have an action that you can come back on. And so if it's modified because of disability, you're able to go back to court and get it modified, or the court can choose to compensate the difference through spousal support. But then there has to be a spousal support order in place. Because normally, once a judgments entered, unless the court retains jurisdiction over spousal support, that's not going to be an issue that you can go back to court for. So it might be incumbent upon any attorney writing a judgement for this as a possibility, to make sure the court retains jurisdiction over spousal support, so that if a modification is needed to go back to court on that issue, that gives the court the authority to modify it and compensate the other party in court.

Steve Altishin  27:51  
There are a lot of things that you as an attorney need to know, really especially when you're talking about the military and pensions. Who would have thought, I wouldn't have thought that you may just want to have even a deminimis spousal support, especially if there's an issue that, you know, a person has been hurt, and maybe it'll get worse. I mean, that whole kind of thing, it's all part of finding an attorney who knows how the military works in this stuff.

Robert Howell  28:22  
Yeah. And that's what I think, I know some attorneys advertise that they do military divorces, and things like that. And in California, that was part of my advertisement, we say we handle military divorces. And it's because you're dealing with so many unknown factors that can come into play. And when you're writing a judgement, to preserve your own legal elements that will prevent any kind of malpractice coming back on you, you need to be very sure that you've covered all the bases, and try to anticipate what might be an issue in the future. I know the California courts, it's just a checkbox on the Judgment form to retain jurisdiction over spousal support. But I haven't run into that issue with the Washington courts yet, so I'm not sure. 

Well, I know we're running up towards 30 minutes, but lets talk a little bit about, because that's not the only benefit of the pension that a military member has or the family has, I think everyone gets TRICARE insurance, they get what they call what the ID card. So there are other benefits that flow with being a spouse. Do any of those kind of transfer to a divorced spouse, or can they?

Anytime you have the former spouse of a retired military person, then that former spouse, and some bases do it differently, but more often than not, if the person put in 20 years, their former spouse is entitled to all the base privileges. They can keep their ID card, which gets you onto the base, you can use the base commissary, you can use the base medical facilities. One of the big reasons that a lot of ex military retire in San Antonio, Texas, is because there are five military installations near San Antonio. And so they can avail themselves of all the privileges they had when they were in the military. And if you have children, the children can retain their IDs until they're 21. And so they can continue to enjoy the the privileges of on base commissary, px and all of that, which, frankly, is pretty significant, because you're not paying taxes for any of those. So it'd be a pretty significant advantage to have that. And certainly, you want to make sure that in a long term marriage that the former spouse is getting those privileges retained.

Steve Altishin  31:25  
I'm sorry, do those privileges go away if the spouse gets remarried?

Robert Howell  31:29  

Steve Altishin  31:32  
So this is a big deal. I mean, medical insurance just by itself is a huge benefit.

Robert Howell  31:38  
Exactly. And so, again, I mean, even up here with JBLM, close to Tacoma, it's always going to be a big issue of the parties to keep access to that at that base. And you know, particularly in these kind of crazy economic times, that's a huge benefit to your clients. 

Steve Altishin  32:01  
Oh, absolutely. Wow, that that is really, really eye opening. Lots of information. I really thank you, and we didn't even touch on child custody, child support, parenting time, what to do with parenting time, assuming a deployment, all of those things. So we're going to have you on again, and I see just by this conversation that even those things sort of become interwoven with the other military benefits. And it's a puzzle, you need to have all the pieces. Wow, thank you Robert so much for being here today. It was really cool. 

Robert Howell  32:44  
All right. Thank you, I enjoyed it.

Steve Altishin  32:45  
Thank you, I did too. And everyone, I just want to thank you for coming again, as always, to our Facebook Live. Anyone with any questions further from today's topic, please feel free to post it here and we can get you connected with Robert. So until next time, stay safe, stay happy, stay healthy, and we'll tune in next time. Goodbye.

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