“Im Deploying! How does that affect my custodial or visitation rights to my child?”
Deploying is a unique and difficult fact of life for most every military family. For those parents involved in a custody or visitation dispute, deployment can be an even more stressful event, as the deploying parent must also be concerned with arrangements for his or her child during the required absence.
Given that Virginia has the second largest military population in the United States, it is not surprising that in 2008 the Virginia legislature addressed the concerns of deploying parents with a statutory scheme designed to protect the custodial or visitation rights of our men and women in uniform.
The Virginia Military Parents Equal Protection Act, incorporated into Virginia Code Sections 20-124.7 through 20-124.10, defines who is considered to be a deploying parent, including not only active duty but … Read More »
Military divorce cases often involve discussion of military retired pay, the Survivor Benefit Plan, and continuation of the spouse’s medical benefits after divorce. A growing topic of discussion in these cases is the servicemember’s education benefits under the Post-9/11 GI Bill. Increasingly, these benefits are becoming a topic of negotiation in separation agreements between divorcing couples.
The GI Bill can cover all in-state tuition and fees at public degree-granting schools. It also provides for a housing stipend and book allowance while in school. The benefits may be used up to 15 years after the servicemember’s discharge from active duty. Eligibility for Post-9/11 GI Bill benefits requires a minimum of six years of service. Separate requirements apply for reservists. Servicemembers may transfer their Post-9/11 GI Bill benefits to a spouse or child, but only after meeting an additional service obligation of four years.
Under 38 U.S.C. § 3020(f)(3), Post-9/11 … Read More »
As we have previously discussed here at the Livesay Myers Blog, the Servicemembers Civil Relief Act (SCRA) can have a significant impact in a family law case where one party is a member of the Armed Forces. The SCRA provides paths for servicemembers on active duty to delay litigation in which they are involved. Key points that servicemembers often ignore with respect to the SCRA are (a) that it only provides a temporary delay to their litigation and (b) that the servicemember is required to actively seek relief under the SCRA.
These points were discussed in a recent Marine Corps Times article regarding a soldier who appealed a child support court order to the Alaska Supreme Court. The soldier argued in his appeal that the SCRA protected him from any negative consequences of civil litigation as long as he is on active … Read More »
Signed into law by President Bush in 2003, the Servicemembers Civil Relief Act (SCRA) both replaced and expanded the similarly-focused Soldiers and Sailors Civil Relief Act (SSCRA), which was originally passed in 1918. The purpose of the SCRA is to allow servicemembers to “devote their entire energy to the defense needs of the Nation.” As such, the SCRA provides legal protections to active duty members of the United States military when they are involved in lawsuits that affect their rights. This applies to all types of litigation, including divorce and child custody lawsuits. If you are a member of the military on active duty, the SCRA can assist you greatly. However, if you are involved in litigation against an active duty member of the military, the SCRA can place many additional hurdles in your path. Here’s how:
How the SCRA Can … Read More »
The Uniformed Services Former Spouses’ Protection Act (USFSPA) recognizes the ability of state courts to distribute a portion of a servicemember’s military retirement to a former spouse. Notably, USFSPA specifies that the maximum amount that can be paid to a former spouse is fifty percent of a servicemember’s “disposable retired pay,” which does not include retired pay that he or she waives in order to receive VA disability pay. In Mansell v. Mansell, 490 U.S. 581 (1989), the U.S. Supreme Court affirmed this rule and held that state courts may not divide upon divorce the military retired pay that a servicemember waives in order to receive disability pay.
The exclusion of retired pay waived for disability pay from division by state courts created perceptions of inequity in divorce cases, particularly where a servicemember had a high VA disability rating and could waive … Read More »
Beginning in 2014, retired servicemembers eligible for Concurrent Retirement and Disability Pay (CRDP) will no longer have to waive any portion of their military retirement in order to receive VA disability compensation. The CRDP program, enacted in 2004, allowed military retirees with a VA disability rating of 50% of higher to receive both military retired pay and VA disability compensation at the same time. This has been commonly referred to as the “concurrent receipt” of disability pay and retired pay.
Before creation of the CRDP, military retirees were forbidden by law to receive both military retirement benefits and VA disability compensation. Parties seeking disability benefits were required to waive an equivalent portion of their military retired pay.
The CRDP program was structured to phase in the disability payments over a ten-year period. In 2013, eligible retirees will receive 99.96% of their disability pay … Read More »
In any separation, divorce or custody dispute, a party might seek financial support. It may be a request for spousal support to get back on their feet. It may be a request for child support. Whatever the type of family support sought, there are two basic strategies for resolving the dispute: negotiating an agreement or litigating a case through the courts. If one party is a military servicemember, however, there may be alternate methods available to settle these issues.
Each service branch has regulations requiring servicemembers to support their families in the event of a separation. The service branch involved can have a great deal of impact when deciding to pursue support through the servicemember’s command. Some branches, like the Army, issue very specific regulations, spelling out the exact dollar amount they will provide, the length of time it will be … Read More »
Survivor Benefit Plan (SBP) coverage is a benefit commonly awarded to former spouses in military divorce cases in Virginia, particularly where the spouse will be receiving a significant share of the servicemember’s military retired pay.
Survivor Benefit Plan – The Basics
What is SBP? SBP is an annuity plan that, after the death of a retired servicemember, pays a monthly sum to a beneficiary designated by the servicemember. SBP payments begin at the death of the retired servicemember, when the servicemember’s retired pay would normally cease. SBP coverage therefore permits a servicemember to continue to provide income to a named beneficiary upon the servicemember’s death. SBP coverage is analogous to life insurance in that it provides servicemembers security that their dependents will be cared for when they are gone.
The Defense Finance and Accounting Services (DFAS) automatically deducts the monthly premiums for SBP coverage … Read More »
In Parts One and Two of this series, we looked at the requirements a former spouse must meet to retain medical coverage through the Tricare program. A 20/20/20 spouse would be eligible for lifetime coverage under Tricare (in addition to other benefits), while a 20/20/15 spouse would be eligible for transitional Tricare coverage for one year. Former spouses who do not qualify as at least 20/20/15 spouses are not eligible for Tricare coverage at all, but they are not left without options.
The Continued Health Care Benefit Program (CHCBP), enacted in 10 U.S.C. 1078a, is available for former spouses who cannot qualify for Tricare coverage under the 20/20/20 or 20/20/15 Rules. The CHCBP offers a COBRA-style program that allows any former spouses who were covered under Tricare on the day before entry of a final divorce decree to pay for continued medical … Read More »
In Part One of this series, we looked at the 20/20/20 Rule and the requirements a former spouse must meet to retain full military benefits and privileges upon divorce from a servicemember. In the event a former spouse cannot qualify under the 20/20/20 Rule, he or she may still be eligible to retain a portion of their military benefits as they transition from being a military spouse to a former spouse.
To qualify for transitional military benefits, a former spouse must satisfy the requirements of 10 U.S.C. § 1072(2)(G), more commonly referred to as the “20/20/15 Rule.” The 20/20/15 rule requires the former spouse to show three things: first, that the servicemember put in at least 20 years of creditable service; second, that the parties’ marriage lasted at least 20 years; and third, that the period of the marriage overlapped the period … Read More »