June 2015



Vol. 58, No. 12

Illinois State Bar Association

Family Law The newsletter of the Illinois State Bar Association’s Section on Family Law

Chair’s column

Inside

By Kelli Gordon

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y year as Chair of the Family Law Section Council will end in two weeks at the Illinois State Bar Association Annual Meeting. I would like to thank Richard Felice, Paula Holderman and John Thies for the appointments that got me to Chair of the Council; and a big thank you to all the council members and the work they have done this past year. It was a pleasure working with such intelligent, enthusiastic and energetic attorneys. Matt Kirsh is our incoming Chair and he already has great ideas of what he wants to accomplish during his tenure. Lane Harvey was our Secretary this past year (his minutes were always timely and impeccable), and he will be will be our Vice Chair next year. Tamika Walker is the incoming Secretary to the council and I

Chair’s column . . . . . . . . . . . . 1 know she will do a tremendous job taking over for Lane. This past year we debated, reviewed, revised, modified, and eventually approved the final draft of the complete overhaul of the IMDMA (SB57, formerly HB1452) which has now been approved by the legislature and sent off to the Governor for his signature. We were able to streamline that process by forming our new Collating Subcommittee, staffed by David Levy, Matt Kirsh, Bill Scott, Jennifer Shaw and Jim Covington. The committee did a tremendous job taking all of the various subcommittee reports on the various issues presented, combining and analyzing them, and then rewriting those portions of the proposed legislation so that all of

In Re Marriage Of Perez: The perils of joint custody revisited. . . . . . . . . . 1 Guard and Reserve pensions on the day of divorce: Part two. . . . . . . . 6 Upcoming CLE programs . . . . . . . . . . . . . . . . 10

Continued on page 2

In Re Marriage Of Perez: The perils of joint custody revisited By Arnold F. Blockman

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his writer has previously expressed concerns about the cavalier imposition of joint custody by trial courts simply as a convenient way to resolve a parenting dispute without having to make a real custody determination. This type of disposition often moves the parenting dispute “down the road” to be dealt with by some future family court judge that has assumed that assignment. See Arnold F. Blockman, “Survey Of Illinois Law: Joint Custody Dilemmas And Views From The Bench,” 31 Southern Il. Univ. L.J., pp. 941-964 (summer 2007). The original joint custody statute was unveiled in Illinois in 1982 by Public Act 82-1002

and became section 603.1 of the Illinois Marriage and Dissolution of Marriage Act. That statute made a distinction between “joint legal custody” and “joint physical custody.” The statute mandated that joint custody could only be ordered by the Court if both parties agreed. The revised joint custody statute became effective on January 1, 1986 (750 ILCS 5/602.1). That amendment made a number of changes. First, it deleted the terms “joint legal custody” and “joint physical custody.” There is now only “joint custody.” Second, the Court may now impose joint custody at the request of either party or its own Continued on page 2

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June 2015, Vol. 58, No. 12

Chair’s column

Family Law

Continued from page 1

the appropriate interests were properly accommodated. Special thanks to David Levy who spent COUNTLESS hours meeting with many of those interested in the content and ensuring that the views of the council were heard. Along with the IMDMA rewrite, the Parentage Act of 2015 has also passed both houses and awaits the Governor’s signature. A huge appreciativeness to Maggie Bennett for all of her hard work on that bill. We all owe a special thank you to our past chair Pam Kuzniar for all of her really hard and diligent work on behalf of the section council

during this past year. Not only did she organize the CLE in New Orleans this year, but she is again in the process of organizing another mock trial to be presented this fall in Grafton, Illinois. She has been an invaluable resource for me as I tried to steer the section council through this past year. She deserves our gratitude and I look forward to her continued involvement with outstanding CLE programs! As I leave the position as Chair, the council will be left in the hands of Matt Kirsh, Lane Harvey and Tamika Walker. They will do a great a job and I look forward to their accomplishments. ■

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Family Law Section Council

In Re Marriage Of Perez: The perils of joint custody revisited Continued from page 1

motion. Third, there is a requirement that before a joint custody order is entered, the parties must present a Joint Parenting Agreement for approval. Fourth, the Court may impose its own Joint Parenting Agreement if it finds that joint custody is in the best interests of the child. Finally, the revised statute specifically states that a factor in awarding joint custody is “the ability of the parents to cooperate consistently in matters that directly effect the joint parenting of the child.” The express statutory power of the trial court to impose joint custody was furthered strengthened by the Fourth District case in In re Marriage of Seitzinger, 333 Ill. App. 3d 103, 755 N.E.2d 282 (4th Dist. 2002) where the trial court was affirmed when it awarded joint custody to both parties with the wife designated as the primary custodial parent over the objection of both parties where each party sought sole custody. The wife argued on appeal that the trial court abused its discretion since the parties could not cooperate sufficiently in regard to decisions concerning the child. The Fourth District disagreed noting that the parties were able to agree on a temporary order, abided by that agreement for several months, cooperated in counseling for the child, neither voiced concerns about the care of the other, and the parties signed a joint parenting agreement after the trial

court implementation of joint custody. The Appellate Court concluded by noting that there was sufficient evidence about the parties’ ability to cooperate, and the court did not abuse its discretion. The danger of the trial court imposing a joint custody order on the parties when one or both does not want joint custody or when the parties cannot agree on parenting times or the residence of the child is obvious to this writer. It is like a business with two partners that cannot agree on major business operational issues. It will likely not be a successful business. Likewise, two joint custodial parents who cannot cooperate regarding major issues regarding the child will not be successful parents and the child will continue to be harmed by the continued conflict in the family over visits with grandparents, timing of vacations, selection of a religion, school decisions, selection of medical providers, selection of extracurricular activities, allocation of parenting time etc. This writer in the above article provided thoughts to both practicing family law attorneys and family law judges regarding how to deal with the problems generated by joint custody. This writer also took the position that the proper role of the trial court is as a gatekeeper. This writer noted at page 959 as follows: It is proposed that trial courts need 2

Kelli E. Gordon,, Chair Matthew A. Kirsh, Vice Chair Morris L. Harvey, Secretary Pamela J. Kuzniar, Ex-Officio Margaret A. Bennett Sharon R. Mulyk Jacalyn Birnbaum Treva H. O’Neill Hon. Arnold F. Blockman Alan Pearlman Chris W. Bohlen Angela E. Peters Molly E. Caesar Arlette G. Porter Hon. Neal W. Cerne Julia A. Pucci Dion U. Davi Jon J. Racklin Hon. Grace G. Dickler Hon. Jeanne M. Reynolds Howard W. Feldman Keith E. Roberts, Jr. Michael R. Galasso Susan W. Rogaliner Lisa M. Giese Curtis B. Ross Cecilia H. Griffin Hon. Richard D. Russo James WIlliam Hanauer Anthony Sammarco David H. Hopkins Hon. Andrea M. Schleifer Patrick B. Hurley William J. Scott, Jr. Heather M. Hurst Jennifer A. Shaw Michele M. Jochner Mark W. Simons Sally K. Kolb Letitia Spunar-Sheats David H. Levy Lindsay C. Stella Rebecca M. Leynaud Michael S. Strauss Marilyn F. Longwell Laura M. Urbik Kern Hon. Pamela E. Loza Hon. Donna-Jo R. Laura L. Malinowski Vordestrasse Lee A. Marinaccio Tamika R. Walker Anne M. Martinkus Douglas B. Warlick Sean M. McCumber Rory T. Weiler Hon. Timothy J. McJoynt Jennifer S. Wiesner Hon. Brian R. McKillip Richard A. Wilson Robin R. Miller Richard W. Zuckerman Enrico J. Mirabelli Mary M. Grant, Staff Liaison Hon. Celia G. Gamrath, Co-Board-Liaison Anna P. Krolikowska, Co-Board Liaison Lisa M. Nyuli, Co-Board Liaison Pamela J. Kuzniar, CLE Committee Liaison Pamela J. Kuzniar, CLE Coordinator Disclaimer: This newsletter is for subscribers’ personal use only; redistribution is prohibited. Copyright Illinois State Bar Association. Statements or expressions of opinion appearing herein are those of the authors and not necessarily those of the Association or Editors, and likewise the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement. Articles are prepared as an educational service to members of ISBA. They should not be relied upon as a substitute for individual legal research. The articles in this newsletter are not intended to be used and may not be relied on for penalty avoidance. Postmaster: Please send address changes to the Illinois State Bar Association, 424 S. 2nd St., Springfield, IL 62701-1779.

June 2015, Vol. 58, No. 12 |

to take a much more active gatekeeper role in approving joint custody agreements and adequately fulfilling its responsibility in insuring that joint custody is, in fact, in the best interest of the child. The trial courts must not simply be a “rubber stamp” for joint custody solely because both parties [or the attorneys for both parties]… want joint custody. This writer then went on the explain the various warning signs or “red herrings” that the parties do not have the ability to cooperate consistently in matters directly effecting the child. These warning signs included an inability to enter into a joint parenting agreement in the first instance, fighting over child support and child support related issues, a geographical distance between where the parties live, various motions for temporary relief over parenting issues, orders of protection proceedings between the parties, pending criminal proceedings involving alleged domestic violence by one party, or a number of attempts at mediation. The recent Third District appellate decision in In re Marriage of Perez, 2015 IL App (3d) 140876 certainly brings home the perils of imposing joint custody where the parents cannot agree on the allocation of parenting time or on the designation of a primary custodial parent. In Perez the wife on September 14, 2012 filed a petition for dissolution of marriage. On December 8, 2012 the court entered a temporary joint custody order for the one minor child and allocated parenting time between the parties on an essentially 50/50 basis. It is not clear from the opinion if a hearing was held on temporary custody or if the parties agreed on the temporary custody order. On March 17, 2014 an evidentiary hearing was held on the permanent custody issue. The husband requested joint custody. The wife did not oppose joint custody. Both parties asked to be designated as the primary custodial parent. The trial court found both parties has been good caregivers, both parties had extensive family support in the area, and both parties had been cooperative on a number of issues, specifically attending wellness visits for the child, agreeing on the child’s pre-school, and agreeing on the child’s extracurricular activities. The trial court ruled that the parties would have joint custody of the young minor child with a 50/50 split in parenting time. The trial court did not specify

a parenting schedule nor did it designate a primary custodial parent. It simply stated, “I don’t know what would work best for the child and parties as far as three days on, four days on, flip flops, I don’t think seven days straight—I am not going to order that for a child that young.” The court also calculated child support for each at 20% of net income and made the party that earned the most net income pay the other party the difference. After the court entered its joint custody findings, the parties could not agree on a joint parenting agreement, and on April 9, 2014 the husband filed a motion for mediation in order to create a parenting schedule. On July 23, 2014 at the hearing on the motion the wife’s attorney stated to the Court, “[Stacey] doesn’t agree to the shared physical care, so it is irrelevant whatever you order because she is not going to agree to anything in mediation and the case is going up on appeal.” The Court then modified the temporary joint custody order ruling that in a 2 week period husband would have the child on Monday, Thursday, Friday, Saturday, Sunday, Monday, and Thursday and wife would have Sunday, Tuesday and Wednesday the first week and Tuesday, Wednesday, Friday and Saturday the following week. The trial court indicated that specific hours were to be set in order to effectuate his objective of a 50/50 split in parenting time. Once again, the trial court did not specify a primary custodial parent. On October 9, 2014 the trial court entered a judgment of dissolution of marriage and a joint parenting agreement of the parties. The judgment provided that the parties would have “joint legal custody of their child pursuant to the provisions of a Joint Parenting Agreement” and “the parties will share care of their child 50/50” listing the same parenting time as enunciated by the Court in its modified temporary order of July 23, 2014. Each party was also to give to the other party the right of first refusal. The parties’ joint parenting agreement simply indicated that the Court had ordered “joint legal custody” and “joint care of the child.” The agreement further specified, “Each parent will have an equal voice in decisions relating to the child’s education, religious upbringing, physical, mental, emotional, and social development.” It finally provided that if the parties were unable to agree on any issue, the parties were to resolve the dispute by reducing their positions to writing, engaging in a discussion, 3

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and going to mediation, if necessary. On appeal the wife did not dispute the joint custody award. She argued that the trial court erred in splitting the parenting time 50/50 and in failing to designate her as the primary custodial parent. The Appellate Court affirmed the trial court on both issues. The Court first noted that the Illinois Marriage and Dissolution Act should be liberally construed in order to secure the maximum involvement of both parties regarding the well being of the child citing 750 ILCS 5/102 (West 2012). The Court stated that the trial court should determine custody issues in accordance with the best interest of the child citing 750 ILCS 5/602 (West 2012). The Court also noted that either party can move for an award of joint custody or a Court can consider joint custody on its own motion citing 750 ILCS 5/602.1(b)(West 2012). The Court further stated that joint custody may be entered if it is in the best interest of the child considering “the ability of the parties to cooperate effectively and consistently in maters that directly affect the joint parenting of the child,” the residential circumstances of the parties, and other factors relevant to the best interests of the child citing 750 ILCS 5/602.1(c)(West 2012); In re Marriage Marcello, 347 Ill. App. 3d 304 617 N.E. 2d 289 (1st Dist. 1993); In re Marriage of Seitzinger, 333 Ill. App. 3d 103, 755 N.E. 2d 282 (4th Dist. 2002) and In re Marriage of Hacker, 239 Ill. App. 3d 658, 606 N.E. 2d 648 (4th Dist. 1992). The Court first specifically addressed the 50/50 parenting time split. The Court indicated that the express language of 750 ILCS 5/602.1 is that, “Nothing within this section shall imply or presume that joint custody shall necessarily mean equal parenting time.” Hence, the Court notes that nothing in the statute either mandates or precludes equal parenting time in a joint custody situation. The Court concluded as follows at paragraph 33: We acknowledge that courts have traditionally viewed 50/50 shared parenting schedules with caution. See Hacker, 239 Ill. App. 3d 658 (remanding for the joint custody order to give some permanency to the physical custody of the children). However, on the facts of this case, the trial court did not abuse its discretion in establishing the 50/50 shared parenting scheduled. In this case; (1) Robert and Stacey are both capable parents; (2) Robert and Stacey were cooperative and could reach shared decisions together in the best

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interest of S.P.; (3) they lived in close proximity to each other so as not to disrupt S.P.’s schooling, connections and community ties; (4) the schedule accounted for the parties’ work schedules and was working well; (5) S.P. was described as a happy child with no indication she would suffer psychologically or emotionally under the 50/50 shared parenting schedule; (6) neither party’s residence was unsuitable for S.P.; and (7) S.P. did not have a strong preference, based on her best interest, against the 50/50 schedule. Therefore, based on the specific facts presented at this time, the trial court’s finding that the 50/50 shared parenting schedule was in the best interest of S.P. was not against the manifest weight of the evidence. The Court next addressed the issue asserted on appeal that the trial court did not designate a primary custodial parent. The Court first noted that 750 ILCS 5/602.1(d) states that the physical residence of the child in a joint custody situation shall be determined either by express agreement of the parties or by order of the Court. The Court stated that it did not read the language of section 602.1 as requiring the designation of a primary custodial parent” citing Kic v. Bianucci, 2011 IL App (1st) 100622 (no abuse of discretion where the trial court’s joint custody order was silent as to the designation of a primary residential parent). The Court concluded as follows at paragraph 38: Hence, the trial court followed the requirements of section 602.1(d) for determining the physical residence of S.P. by designating which days S.P. would reside with each parent in its judgment of dissolution. We understand that selecting a “primary” residential parent could have certain ramifications. See, e.q., Portman v. Department of Human Services, 393 Ill. App. 3d 1084 (2009) (interpreting the term “custodial parent” in a regulation for receiving child care assistance as excluding a divorced father, even though he had joint legal custody and equal parenting time, where the mother was designated the primary residential parent). In this case, parties live in close proximity to one another, share joint custody and equal parenting time, and cooperate in pursuing the best interests of S.P. Given the facts of this case, the trial court acted within its discretion in deciding to forego designating either parent as the “primary” residential custodian. The bottom line from a reading of the Perez opinion is that just because a certain

decision is not an abuse of discretion does not mean that it is a right decision or that the decision is in the best interest of the minor child. The trial court error was in ordering joint custody in the first place. Although the husband and wife could agree on certain issues, such as attendance at wellness appointments, agreement on a pre-school and agreement on extracurricular activities for this young child, the parties could not agree on the signing of a joint parenting agreement with specific terms, both before and after the Court’s custody order, could not agree on specific parenting time, and could not agree on where the child would live. Indeed, the areas of disagreement in this case are certainly more important and substantial issues “directly effecting the joint parenting of the child” than were the areas of agreement. It is this writer’s opinion that when there is substantial conflict and lack of cooperation, there has to be someone making the major decisions or, at the least, someone designated as the primary custodial parent. All this resolution does is push the conflict further down the road. This writer has observed that

as a child gets older, the points of conflict substantially increase for a number of reasons. The extracurricular activities increase, other relationships of the husband and wife become involved, the public versus private school issues increase, the religious needs of the child change etc. The result of this forced joint custody agreement is like a stalemated business partnership, a dysfunctional family that has substantial conflict over all major decisions. The obvious loser in this situation is the young minor child who continues to be directly involved in the conflict. This is the very person whose interest we are supposed to protect as the guiding principle of custody litigation! Perhaps someday Senate Bill 57 will put us out of our misery, will abolish totally the concepts of “joint parenting” and “custody,” and will forever protect us from the continued perils of pure joint custody. ■ __________ Arnold F. Blockman is a Circuit Judge in Champaign County, has been the presiding Judge of the family law division in Champaign County since 2000, and is a member of the Family Law Section Council.

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June 2015, Vol. 58, No. 12 |

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June 2015, Vol. 58, No. 12

Guard and Reserve pensions on the day of divorce: Part two By Mark E. Sullivan

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n the first part of this article, we learned of the dilemma facing Sam Green, the soonto-be-ex of Janet Green, a Navy Reservist. Visiting his lawyer, Sam was expressing his frustration and confusion in the attempts he had made to find out about what her benefits would be, what she would receive in retired pay, how much was his share, and what he’d receive if she died before him. The first part explained what is required for a Reserve Component (RC) or “non-regular” retirement, that is, one involving the National Guard or Reserves. It covered how retirement points are acquired, what a “points statement” looks like, and how one’s retired pay will be calculated.

RC Pensions and Divorce The Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408, provides the rules for military retired pay and its division upon divorce. It applies to RC and regular retirements.1 There are two key considerations in dividing RC retirement rights. First, since RC SMs (servicemembers) usually do not begin to get paid until age 60 (regardless of when they stop drilling and apply for transfer to retired status), this deferral of payment must be taken into account in the negotiations and in any present value calculations. There will almost always be a “gap” between applying for retirement and “pay status” for the military member. Second, the “marital fraction” should usually be computed twice – once using marital years of service over total years of service, and then again using marital retirement points over total retirement points -- to determine which computation will best benefit the client. When dealing with RC retirements, be sure to get a copy of the SM’s most recent statement from the Retirement Points Accounting System (RPAS), also known as the “points statement.” This will show how many total points have been acquired and how many were earned during the marriage.

Computations—An Example An example will help illustrate what a difference this might make. Major Bill Smith has four years of active duty and 16 years of service in the Army Reserve. He married when

he left active duty. To calculate the marital fraction using points, we start by counting the points he acquired during active duty by multiplying 4 times 365 to get 1460 points. Then we count his Reserve points. During his time as a Reservist, assume that he acquired 73 points a year – 15 each year for membership, 44 points for 11 months of weekend drill, and 14 points for two weeks of annual training . This totals 1168 points for 16 years. Thus his total points at 20 years are 2628 (1460 plus 1168), of which 1168 (or about 44%) are marital. This should mean that 44% of his retired pay is marital, assuming retirement and date of separation both occur at year 20. Now let’s use years in calculating the marital fraction. He was married for 16 years out of the 20 years of creditable service. Note the result: if we use years in applying the marital fraction to his retirement pay, then the marital share of his pension is 16 divided by 20. This means that it is 80% marital. What a difference! Recognition of these two ways of calculating the marital benefit, and the difference when Major Smith’s pension is calculated, is essential to competent representation in the Guard/Reserve pension case. The issue is complicated by the interplay between federal and state law. How to divide a pension, in general, is the province of state cases and statutes. Some states recognize the use of points for pension division, while others will only allow a “time rule” for the marital fraction.2 Nothing in USFSPA says how to divide a Guard/Reserve pension or how to calculate the marital fraction, whether Guard/ Reserve or active-duty. It is completely silent on this. The retired pay center, which is usually Defense Finance and Accounting Center (DFAS), will not honor a formula clause in an RC pension division order which contains a marital fraction using months or years and the RC member is still drilling.3 There are two reasons for this. First, in practical terms, one cannot speak of RC service in terms of months or years. The Defense Department doesn’t keep track of RC service in terms of time, since RC points are the method of computing retired pay at DFAS. 6

In addition, the regulation which DFAS uses requires that a formula clause containing a marital fraction must be written in terms of retirement points, not years or months: For members qualifying for a reserve (i.e., non-regular service) retirement, retiring from Reserve duty, the numerator expressed in terms of Reserve retirement points earned during the marriage must be provided in the court order. If the numerator is not provided in the court order, then either the court will have to clarify the award or the parties will have to agree on the numerator and provide it to the designated agent in a notarized statement signed by both parties.4 What can the family law practitioner do if the time calculation is more favorable to the client? There is no alternative formula clause which is acceptable to DFAS when the RC member is still drilling. If, however, the member has stopped drilling and applied for retirement status, or is already in pay status, then one can use any of the four available pension share clauses which DFAS will accept: set dollar amount, percentage, formula clause (using years or points) and hypothetical clause.5 Thus a probable approach to pension division in the above case, assuming the RC member is not still drilling, is to use a percentage clause, not a formula clause. This is also the case when state law “fixes” the spousal interest at the date of divorce or separation, as is the case in Florida, Texas, Tennessee, Kentucky and Oklahoma. It is a simple matter to convert the marital formula into a percentage since all of the terms – spouse’s share (usually 50%), numerator and denominator of the marital fraction, and benefit to be divided – are known. A court order containing a percentage or a hypothetical award will be honored by DFAS if it leaves nothing out (other than data available to DFAS). DFAS will also accept a set dollar amount that is specified in a military pension division order. However, the amount will not be adjusted annually for COLAs (cost of living allowance) for the non-military partner.6 Such an award might state: “Sam Green will receive $400 a month from Janet Green’s Naval Reserve retired pay.”

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Practice tip These days, with the high number of Guard/Reserve mobilizations, it is increasingly possible for an RC member of the Reserve Components (RC) to accumulate enough years to consider “hanging on” for activeduty retirement after completion of 20 years of creditable service. What happens if Janet Green has eight creditable years of RC service, four initial years of active duty, and now four years of mobilized active-duty service in support of Operation Brass Key in the Duchy of Grand Fenwick? Involved in a pending divorce, what should Sam Green do when he is confronted with the almost equal possibility of her retirement from the “active side” or the “Reserve side,” in terms of an order for present pension division? In addition to the court’s reserving jurisdiction until a final decision is made, the court could enter an order which provided for one of the two retirements, with the parties’ property settlement agreement containing the following clauses: During 153 months of the parties’ marriage, the defendant-wife has served both on active duty and as a member of the United States Naval Reserve. She either will become eligible to apply for Reserve retired status after serving 20 qualifying years of Reserve service in 2018, with Reserve military retirement payable at about age 60, or will become eligible for active duty retirement after 20 creditable years of active duty service. The parties recognize the plaintiff’s rights to a percentage of whichever of these two retirements that the defendant ultimately receives. Due to the complexity of the military retirement system and in the interest of affording plaintiff an equitable share, a formula should be used in order to divide the pension. This will cover the contingencies of defendant’s continued Reserve service or a return to active duty, as well as her continued advancement in grade and time in service. Any retirement paid to plaintiff under either retirement plan is referred to as “Military Retired Pay.” In either of these situations, the SBP (Survivor Benefit Plan) premium for former-spouse coverage for plaintiff will be deducted from total retired pay to arrive at Military Retired Pay.

The parties will cooperate in the drafting and entry in the District Court for Coriander County, East Virginia, of an order dividing defendant’s Military Retired Pay, so that plaintiff shall receive a portion of either monthly benefit payment according to the formula set forth below. The order shall be drafted as an order dividing active duty retired pay, but shall specifically state that the parties reserve the right to enter a “clarifying order” in the event that defendant-wife retires as a Reservist. In this latter event, the parties will cooperate in the drafting and entry of a clarifying order, and the parties will equally divide the cost of drafting the clarifying order. If defendant-wife retires from active duty, the plaintiff’s share of the monthly pension benefit will be governed by the time rule and will be computed according to the following formula: 50% of the monthly benefit multiplied by a fraction, the numerator of which shall be the number of months the parties were married (153) up to the separation, and the denominator of which shall be the number of creditable months served by the defendant-wife earning the Military Retired Pay. If defendant retires as a Reservist, the order dividing Military Retired Pay will be entered as soon as reasonably practicable after defendant’s application for Reserve retirement. The plaintiff’s share of the monthly pension benefit will be governed by the acquisition of Reserve retirement points and will be computed according to the following formula: 50% of the monthly benefit multiplied by a fraction, the numerator of which will be the number of Reserve retirement points acquired during the marriage up to the separation, which is 2,345 points, and the denominator of which will be the total number of Reserve retirement points at the date of defendant’s Reserve retirement orders.

Where to Send the Court Order The Military Pension Division Order (MPDO) is sent to the appropriate “designated agent” for payments. See DoDFMR (Department of Defense Finance Management 7

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Regulation),7 Vol. 7B, ch. 29, § 290403 for the names and addresses of the designated agents for each branch of service. Note that the order is not called a Qualified Domestic Relations Order (QDRO) because military retirement is a statutory governmental program, not a “qualified plan” divided by a QDRO.

Which Military Retirement Plan? Military personnel get a monthly Leave and Earnings Statement (LES). The Active Duty LES contains blocks reading “RETPLAN” and “DIEMS,” while the Reserve and Guard LES may lack these blocks. The “RETPLAN” block tells which retirement plan the member will retire under: Final Basic Pay, High-3, or REDUX. That plan is in turn determined by the Date of Initial Entry into Military Service (DIEMS). As explained in Part One of this article, DIEMS before September 1, 1980 means Final Basic Pay. DIEMS between 1980 and 1988 means High-3. Finally, DIEMS after 1988 means CSB/REDUX. DIEMS is determined by the first date of military service. It is unaffected by a break in service and so can differ from Pay Entry Base Date, or PEBD.8

Other Requirements for Direct Pay of the Pension Share The MPDO can only be used for direct payments if, pursuant to 10 U.S.C. 1408(c)(4), there is court jurisdiction because the SM – • is domiciled in the state in which the suit for the divorce or property division occurs; or • resides in the state in which the lawsuit occurs (other than because of military assignment); or • consents to the jurisdiction of the court in which the lawsuit occurs.9 If the order states that jurisdiction is based on one of the above grounds, it must also state the basis for the finding (i.e., member’s residence, member’s domicile or member’s consent).10 Virtually every former spouse wants to receive monthly payments from the retired pay center, not from the military retiree. Pension garnishments (as property division, as opposed to alimony or child support) require that the parties have been married for at least ten years while the military member performed at least ten years of creditable service; this is known as “the 10/10 Rule.”11 Note that the “10-year rule” is not a jurisdictional requirement for dividing military

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June 2015, Vol. 58, No. 12

pensions. There is no limitation on the number of years of marriage overlapping military service as a requirement for military pension division, although this is a widely held misconception in the civilian bar. A military pension may be divided by court order whether the spouse has 30 years of marriage to the SM or 30 days of marriage. Rather, this time requirement is a prerequisite to enforcement through DFAS. The payment mechanism of a garnishment of the member’s retired pay is not available unless this test is met.12 Note that some states don’t use the term “garnishment” for support payments. But that is the terminology used in 42 U.S.C. § 659 and 5 C.F.R. Part 581, and that term should be employed when dealing with any federal pension, whether military or civilian. When there are ten years of combined Guard/Reserve and active service, DFAS will aggregate them to allow the ten-year rule to be met.13 It should be noted that being in the Guard or Reserves for 10 years is not necessarily the same thing as “having ten good years” which are creditable toward retirement. A “good year” is one in which the Guard/Reserve SM has accumulated at least 50 points. A year with fewer points means that the year is not creditable toward retirement (a minimum of 20 good years) although the points in that year still count in calculating retired pay. The order must also provide for payment from military retired pay in an acceptable clause.14 The court order must be authenticated or certified within the 90 days immediately before its service on DFAS, and it must state the eligibility of the spouse or former spouse under the “10/10 rule” stated above. The right information must be in the order (e.g., names, addresses, jurisdictional facts), and the amount for the former spouse must be within the maximum limits (i.e., 50% of disposable retired pay) for most orders). The SM remains liable for any amount still owing. In cases where there is an application for the direct payment of court-ordered division of military retired pay and a garnishment issued pursuant to 42 U.S.C.§ 659 (child or spousal support), DFAS is authorized to deduct higher maximum amounts.15 The parties have taxes deducted from their respective shares before the checks are sent.

The Hypothetical Clause There are, in general, four acceptable methods of dividing military retired pay. The set dollar amount, percentage and for-

mula clause have been covered above. The fourth is a hypothetical clause, which is an award based on a pay grade or term of years of service that is different from what exists when the SM actually retires. This is usually used when the parties’ interests are fixed as of some specific valuation date. For example, if the parties divorced while the wife was a Navy chief petty officer with 18 years of creditable military service, the hypothetical clause might state:

¨

Husband is granted ___% of what a chief petty officer (E-7) would earn if she were to retire with 18 years of military service with a retired pay base of $______.

¨

A hypothetical clause in a military pension division order for a still-serving RC member might be worded as follows: Husband is awarded _____% of the disposable military retired pay that wife would have received had she become eligible to receive military retired pay with a retired pay base of $_____ and with _______ Reserve retirement points on (date). If the wording isn’t right, DFAS will return it for entry of a “clarifying order” by the court. Since there is no pre-signing review of draft MPDOs available at DFAS, counsel must get it right the first time. The “Attorney Instructions” and the sample military retired pay division order explain how to word the clauses.16

¨

¨

The Servicemembers Civil Relief Act There must be a statement in the pension division order that “the member’s rights under the Servicemember Civil Relief Act (50 U.S.C. App. 501 et seq.) were observed.”17 The Servicemembers Civil Relief Act (SCRA) offers protection for military members who are on active duty at the time of the property division or divorce; it does not apply to retirees, but it would be a better practice to include such wording in all military pension division orders. What protections for Janet Green are involved? A checklist for SCRA protections would include at least the following:

SCRA Checklist for Servicemember Pension Division Protections ¨ 1. If the SM, Janet Green, has not entered an appearance in the divorce case, or the pension or property division lawsuit, a stay (continuance) must be 8

¨

¨

¨

granted for at least 90 days if – ¨ a. the judge determines that there may be a defense to the action, and such defense cannot be presented in the SM’s absence, or ¨ b. with the exercise of due diligence, counsel has been unable to contact the SM (or otherwise determine if a meritorious defense exists). 50 U.S.C. App. § 521(d). 2. If Janet has actual notice of the lawsuit, a similar mandatory 90day stay (minimum) of proceedings applies if she requests it properly. 50 U.S.C. App. § 522. 3. She may ask for an additional stay at the time of the original request or later. 50 U.S.C. App. § 522 (d)(2). If the judge will not grant an additional stay, then counsel must be appointed to represent her in the action. 50 U.S.C. App. § 522(d)(2). 4. The stay request does not constitute an appearance for jurisdictional purposes in the lawsuit, and it does not constitute a waiver of any substantive or procedural defense (including a defense as to lack of personal jurisdiction). 50 U.S.C. App. § 522(c) 5. If Janet has been served but has not entered an appearance by filing an answer or otherwise, her husband may not obtain a default judgment (meaning an adverse ruling) under 50 U.S.C. App. § 521 unless the court first determines whether she is in military service. This means that Sam Green must file an affidavit stating “whether or not the defendant is in military service and showing necessary facts in support of the affidavit.” 50 U.S.C. App. § 521(c). 6. If Sam Green states in the affidavit that Janet is a member of the armed forces, no default may be taken until the court has appointed an attorney for Janet in the pension division case. 7. If the appointed attorney cannot locate Janet, actions by the attorney may not waive any defense she has or otherwise bind her in the pension action. 50 U.S.C. App. § 521(b)(2). 8. If a default decree is entered against Janet during active duty or within 60 days thereafter and she has not received notice of the proceeding, she may move to reopen it so long as -

June 2015, Vol. 58, No. 12 |

¨ a. She does so while on active duty or within 90 days thereafter. 50 U.S.C. App. § 521(g); and ¨ b. She can prove that, at the time the judgment was rendered, she was prejudiced in her ability to defend herself due to military service; and ¨ c. She has a meritorious or legal defense to the initial claim. If, at a minimum, these rights have been honored, then the court order for pension division could truthfully state that Janet Green’s rights under the SCRA had been observed. Such a statement would read: The court has complied with the rights of the defendant, Janet Green, under the Servicemember Civil Relief Act (50 U.S.C. App. 501 et seq.).

Other Terms for Consideration A well-written MPDO will protect Sam by stating terms for indemnification if Janet later is determined to be disabled. Disability payments received after retirement can reduce the amount which Sam Green should be receiving. An indemnification clause might read: If Janet Green does anything that reduces the amount or share of retired pay to which Sam Green is entitled, such as the receipt of disability pay, then she will promptly make direct payments to Sam Green to indemnify him and hold him harmless from any reduction, costs or damages which he may incur.

Starting the Process The spouse or former spouse usually starts the process of division of the military pension by notifying DFAS by facsimile or electronic submission, by mail, or by personal service; service is effective when a complete application is received by DFAS. The notification form is DD Form 2293 (“Request for Former Spouse Payments From Retired Pay”).18 Payments are made once a month, starting no earlier than 90 days after service of the decree on DFAS or the start of retired pay, whichever is later. The payments end no later than the death of the member or spouse, whichever occurs first.19 Payments are prospective only; no arrears are allowed. USFSPA does not provide for garnishment of payments missed prior to the approval of the application by DFAS.

Survivor Benefit Plan In regard to Sam Green’s questions about the death of Janet before him, the answers about continued payments lie in the Survivor Benefit Plan (SBP), which is a joint and survivor annuity available to active-duty and RC retirees to ensure the continuation of payments after the SM/retiree dies. The surviving spouse or ex-spouse, when this is chosen, receives 55% of the selected base amount for the rest of his life, so long as he does not remarry before age 55. This should always be considered in a settlement or trial judgment when one represents the former spouse.20 When Janet got her “20-year letter,” also known as the NOE (Notice of Eligibility), she also received a form for making a decision as to SBP. Shown on DD Form 2656-5 were these options: • Option A – defer the decision until “pay status,” which is usually age 60. • Option B – elect coverage, but defer the payments until the SM would have attained pay status, usually at age 60. • Option C – immediate coverage, which means that the survivor receives payments starting when the SM dies. Any choice except Option C requires the consent of one’s spouse. If the executed form is not returned within 90 days of receipt by the SM, he or she is defaulted into Option C. To review the form, it will be necessary to have Janet produce a copy in discovery. If that doesn’t work, then Sam must obtain a court order or a subpoena signed by a judge, for a copy of Janet’s DD Form 2656-5. The subpoena or order is sent to the address under Instructions if Janet is not yet in pay status; it is sent to DFAS in Indianapolis if she is receiving retired pay. It usually takes a month or two to obtain delivery. There is one hitch in coverage for Sam, however. He will lose his “spouse coverage” upon divorce. If he decides to request SBP coverage, he needs to obtain a court order requiring Janet to elect “former spouse” coverage for him. His submission of such an order, along with the divorce decree and his “deemed election” (on DD Form 2656-10) within one year of the order, ensures that he will be covered. If Janet submits an election for his coverage, it must be done within one year of the divorce decree. ■ __________ Mr. Sullivan is a retired Army Reserve JAG colonel. He practices family law in Raleigh, North Carolina and is the author of The Military Divorce 9

Family Law

Handbook (Am. Bar Assn., 2nd Ed. 2011) and many internet resources on military family law issues. A Fellow of the American Academy of Matrimonial Lawyers, Mr. Sullivan has been a board-certified specialist in family law since 1989. He works with attorneys and judges nationwide as an expert witness, as a consultant on military divorce issues and in drafting military pension division orders. He can be reached at 919-832-8507 and mark.sullivan@ ncfamilylaw.com. 1. See Captain Karen A. MacIntyre, “Division of U.S. Army Reserve and National Guard Pay upon Divorce,” 102 Mil. L. Rev. 23 (1983). 2. For cases holding that classification of the marital part of a Reserve Component (Guard/ Reserve) pension may be based on “marital points” divided by “total points,” see Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002), Hasselback v. Hasselback, 2007 Ohio 762, 2007 Ohio App. Lexis 644 (2007), Woodson v. Saldana, 165 Md. App. 480, 885 A.2d 907 (2005), Bloomer v. Bloomer, 927 S.W.2d 118 (Tex. App. 1996), In re Beckman, 800 P.2d 1376 (Colo. Ct. App. 1990) and In re Poppe, 97 Cal. App. 3d 1, 158 Cal. Rptr. 500 (1979), and. Some states, on the other hand, require calculation of the marital fraction based on time, not “points” or some other factor. See, e.g., N.C. Gen. Stat. § 50-20.1(d), which states, “The award shall be determined using the proportion of time the marriage existed (up to the date of separation of the parties), simultaneously with the employment which earned the vested pension, retirement, or deferred compensation benefit, to the total amount of time of employment.” In Virginia, where the division of a pension is according to years instead of points, the Court of Appeals upheld a time-rule division as within the trial court’s discretion. Jordan v. Jordan, 2004 Va. App. LEXIS 285 (June 22, 2004). 3. The pay center, or “designated agent,” for most USFSPA pension division orders is DFAS, since it handles orders for the Army, Navy, Air Force and Marine Corps; thus that abbreviation is used throughout this article. In fact, the Coast Guard, PHS, and NOAA pay centers are separate entities. See DoDFMR (Department of Defense Finance Management Regulation), Vol. 7B, ch. 29, § 290403 for names and addresses of the designated agents for each branch of service. 4. DoDFMR, Vol. 7B, ch. 29, § 290607.B. Acceptable formula award language is contained in the “Military Retired Pay Division Order” at Appendix A in the chapter. 5. See DoDFMR, Vol. 7B, ch. 29, § 290608 for the specific DFAS rules regarding permissible and required terms in the “hypothetical retired pay award.” 6. DoDFMR, Vol. 7B, ch. 29, § 290601.C and 290902. 7. The DoDFMR can be found at http://comptroller.defense.gov/fmr 8. Service Academy (e.g., West Point) time as a Cadet or Midshipman, while not creditable for retirement or pay, impacts DIEMS. The date the member swore into the Academy as a Cadet or Midshipman fixes DIEMS even if the member didn’t graduate from the Academy. Service Academy dropouts who later re-enter military service should ensure their Academy discharge is record-

Family Law |

June 2015, Vol. 58, No. 12

ed in their military record and that their Academy service is reflected in their Retirement Point Accounting System (RPAS) statements. The non-serving spouse of such a servicemember with a break in service around 1980 or 1988 will want to ensure that Academy service qualifying for the earlier retirement plan is entered into the RPAS. 9. DoDFMR, Vol. 7B, ch. 29, § 290604.A. See also 10 U.S.C. § 1408(c)(4). 10. DoDFMR, Vol. 7B, ch. 29, § 290605. 11. DoDFMR, Vol. 7B, ch. 29, § 290604.B. See also 10 U.S.C. § 1408(d)(2). 12. See, e.g., Carranza v. Carranza, 765 S.W. 2d

32 (Ky. App. 1989). 13. E-mail, Phoenix attorney Michael McCarthy, to the author, subject: 10/10 issues for your book/ question re: requirements for member to delete SBP (September 2, 2004) (on file with the author). 14. 10 U.S.C. 1408(a)(2)(C). 15. DoDFMR, Vol. 7B, ch. 29, § 290901. 16.The Attorney Instructions may be found at www.dfas.mil > Garnishment Information > Former Spouses’ Protection Act > Attorney Guidance. Also at the “Former Spouses’ Protection Act” tab are notes on “Legal Overview,” how to apply for payments from DFAS, the “maximum amount”

rules, receipt of payments (including taxes and direct deposit information), and Frequently Asked Questions. 17. DoDFMR, Vol. 7B, ch. 29, § 290602.B; see also 10 U.S.C. § 1408(b)(1)(D). 18. This can be found by typing “DD Form 2293” at Google, Yahoo or any other search engine. 19. DoDFMR, Vol. 7B, ch. 29, § 291102.A. 20. A full explanation of how this works is found at the www.nclamp.gov > Silent Partner > Military Pension Division: The Spouse’s Strategy.

Upcoming CLE programs To register, go to www.isba.org/cle or call the ISBA registrar at 800-252-8908 or 217-525-1760.

July Wednesday, 7/1/15- Teleseminar— Outsourcing Agreements. Presented by the ISBA. 12-1.

PLAY. Presented by the ISBA. 12-1. Friday, 7/24/15- Teleseminar—Estate Planning for Farms and Ranches- LIVE REPLAY. Presented by the ISBA. 12-1.

Thursday, 7/2/15- Teleseminar—Planning with Life Insurance Trusts. Presented by the ISBA. 12-1.

Tuesday, 7/28/15- Teleseminar—Business Planning with S Corps, Part 1. Presented by the ISBA. 12-1.

Tuesday, 7/7/15- Teleseminar—Business Planning with Series LLCs. Presented by the ISBA. 12-1.

Wednesday, 7/29/15- Teleseminar— Business Planning with S Corps, Part 2. Presented by the ISBA. 12-1.

Wednesday, 7/8/15- Teleseminar—Ethical Issues When Representing the Elderly— LIVE REPLAY. Presented by the ISBA. 12-1.

Thursday, 7/30/15- Teleseminar—Eminent Domain, Part 1- LIVE REPLAY. Presented by the ISBA. 12-1.

Thursday, 7/9/15- Teleseminar—Settlement Agreements in Litigation- LIVE REPLAY. Presented by the ISBA. 12-1.

Friday, 7/31/15- Teleseminar—Eminent Domain, Part 2- LIVE REPLAY. Presented by the ISBA. 12-1.

Tuesday, 7/14/15- Teleseminar—Tax Planning for Real Estate, Part 1. Presented by the ISBA. 12-1.

August

Wednesday, 7/15/15- Teleseminar— Tax Planning for Real Estate, Part 2. Presented by the ISBA. 12-1. Tuesday, 7/21/15- Teleseminar—Restrictive & Protective Covenants in Real Estate. Presented by the ISBA. 12-1. Wednesday, 7/22/15- Teleseminar— Fiduciary Duties & Liability of Nonprofit/ Exempt Organization Directors and Officers. Presented by the ISBA. 12-1. Thursday, 7/23/15- Teleseminar—Ethics and Digital Communications- LIVE RE-

Tuesday, 8/4/15- Teleseminar—Construction Agreements, Part 1. Presented by the ISBA. 12-1. Wednesday, 8/5/15- Teleseminar— Construction Agreements, Part 2. Presented by the ISBA. 12-1. Tuesday, 8/11/15- Teleseminar—Estate Planning with Annuities & Financial Products. Presented by the ISBA. 12-1. Thursday, 8/13/15- Teleseminar—2015 in Age Discrimination Update. Presented by the ISBA. 12-1. Friday, 8/14/15- Teleseminar—Ethical 10

Issues in Buying, Selling, or Transferring a Law Practice. Presented by the ISBA. 12-1. Tuesday, 8/18/15- Teleseminar—Business Divorce: When Business Partners Part Ways, Part 1. Presented by the ISBA. 12-1. Wednesday, 8/19/15- Teleseminar— Business Divorce: When Business Partners Part Ways, Part 1. Presented by the ISBA. 12-1. Thursday, 8/20/15- Teleseminar—Easements in Real Estate. Presented by the ISBA. 12-1. Monday, 8/24/15- Teleseminar—LikeKind Exchanges of Business Interests- LIVE REPLAY. Presented by the ISBA. 12-1. Tuesday, 8/25/15- Teleseminar—Estate Planning for Guardianship and Conservatorships. Presented by the ISBA. 12-1.

September Tuesday, 9/1/15- Teleseminar—Estate & Trust Planning With the New 3.8% on Income. Presented by the ISBA. 12-1. Wednesday, 9/2/15- Teleseminar— Drafting Service Agreements in Business. Presented by the ISBA. 12-1. Thursday, 9/3/15- Teleseminar—Drafting Effective Employee Handbooks- LIVE REPLAY. Presented by the ISBA. 12-1. Friday, 9/4/15- Teleseminar—Rights of First Refusal/Rights of First Offer in Transactions. Presented by the ISBA. 12-1. ■

June 2015, Vol. 58, No. 12 |

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June 2015 Vol. 58 No. 12

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