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 »
If you have reviewed the military divorce sections of our website and blog, you should be familiar with the basics of the division of military retired pay pursuant to a divorce in Virginia. In short:
Your disposable retired pay, meaning your gross military retired pay minus any deductions for disability, is divisible under both federal and state law.
Under Virginia law, your spouse can receive up to fifty percent of the “marital share” of your retired pay, the marital share being defined as the portion that was earned during the marriage before separation.
The Defense Finance and Accounting Service (“DFAS”) can pay your spouse his or her portion of your military retired pay directly where your marriage overlapped with 10 years or more of your military service.
What we have not discussed in detail is how you can structure your military retired pay award … 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 »
If you have a child and are contemplating a divorce or separation from your spouse or partner, it is essential that you educate yourself as to your rights and obligations under the law. For servicemembers, the choice of counsel can be difficult, as many attorneys handle military divorce cases very infrequently, if at all. In Part One of this series on military divorce, we addressed the grounds for divorce in Virginia, the benefits of separation agreements, how Virginia’s Courts equitably distribute marital property and debts, and spousal support. In Part Two, we address the issues surrounding child custody, visitation, and support as they apply to servicemembers in Virginia. This post will describe just a few of the essential facts and issues you should be aware of before embarking on such a case in Virginia.
I. Jurisdiction. When you first meet with your … 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 »
Are you a servicemember who is contemplating a divorce or separation from your spouse? For most servicemembers, the failure of a marriage is one of the most stressful experiences of their lives. However, divorce does not have to be difficult, and your chances of working out an amicable separation agreement are greatly increased if you are served by competent legal counsel and educated as to the applicable law of divorce and separation in your state of residence. If you are a servicemember and live in Virginia, here is what you need to know before you begin.
I. Divorce Grounds. There are two different types of divorce in Virginia. The first, a divorce a mensa et thoro (from bed and board) does not entirely dissolve the marriage, but establishes that a husband and wife are legally separated from one another. Bed and board … 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 »