Indemnification After VA Waiver – US Supreme Court Decision

Indemnification After VA Waiver – US Supreme Court Decision

The US Supreme Court announced its decision today in Howell v. Howell.

Here’s a link to download in pdf for your review.

The issue before the US supreme court was whether state courts can order veterans to indemnity former spouses when the military veteran waives his military retirement pay in order to receive VA disability pay.  When a veteran waives a portion of the retired pay, the former spouse’s portion is reduced as well, to the benefit of the veteran and the detriment of the former spouse.

The Supreme Court held that the state court cannot order the veteran to reimburse the former spouse, citing Mansell v. Mansell and reversing the Arizona Supreme Court.

As it stands now, a member/retiree can unilaterally circumvent the rights of a former spouse by accepting VA compensation and waiving retired pay.  In the coming months, I expect that we will see proposals for legislation to address this issue.  In the meantime, this highlights the importance of including clauses for indemnification in the marital settlement agreement or otherwise addressing the indemnification through alimony.

If you have a question about the distribution of military retired pay in a divorce or military pension division, please contact Kirkner Family Law at (813) 254-0156.

How a Skilled Military Divorce Attorney Can Help You

How a Skilled Military Divorce Attorney Can Help You

Divorce proceedings involving parties that are members of the United States Armed Forces pose specific and often convoluted issues that must be handled by someone well-versed in the legalities of military divorce. For example, there are numerous requirements to complete when handling the division of a military retirement or pension, or preparations to consider when a parent is required to appear for military duty. A recent 2016 case in Vermont illustrates an example of how beneficial and necessary a skilled military divorce attorney can be when handling military matters within a divorce.

In 2016, a trial court judge in Vermont refused to divide the then-husband’s military retirement, stating that since the retirement was
not yet vested, that he “would not and could not distribute” the military retirement since the husband had, at the time of the final hearing, no entitlement to his retirement. The judge, in his reluctance to divide the retirement between the parties, pulled both attorneys aside to speak with them and, as a result, the then-wife entered into a stipulation to accept $15,000.00 in exchange for her waiver of any claims to the husband’s future military retirement.

It was later discovered that, in fact, the judge was wrong. Not only was the judge able to distribute the husband’s military retirement, as the law in most states (including Florida) does not require the actual vesting of marital assets as a precondition to those assets being divided upon divorce, but the wife’s portion of the retirement over her lifetime could have been worth nearly $500,000.00, which was lost as a result of the judge’s error and the attorney’s failure to recognize the error.

When the wife’s attorney later realized the judge’s misguidance and that the stipulation was inequitable for the wife considering the law on the matter, she sought to set aside the stipulation “on the ground that she entered into the agreement in reliance on an in-chambers ‘weather report’ in which the trial judge misstated the applicable law.” See Coons v. Coons, 2016 WL 1706665, a Supreme Court of Vermont case on appeal from the Vermont Superior Court – Family Division Docket No. 137-5-14. The Supreme Court of Vermont affirmed the lower court’s decision and did not overturn the stipulation, stating that a mistake of law does not establish a reason for setting aside a binding final stipulation.

Due to the judge’s assumption, and the wife’s attorney’s unawareness of the applicable law regarding military retirement benefits, the wife was unable to receive the benefit of her marital portion of the husband’s military pension. When any member or prior member of the military needs assistance in divorce proceedings, engaging the services of an experienced military divorce attorney is in their best interests. An attorney who consistently practices in the field of military divorce and is knowledgeable regarding the current laws, options, and information that encompass a military divorce proceeding can achieve an equitable settlement or be in the best position to advocate on these issues at trial.

Kristin Kirkner is board certified in marital family law in the State of Florida and has focused her practice solely on family law and military family law since 2004. Kristin has been accepted in the Thirteenth Judicial Circuit for the State of Florida as an expert in military divorces and division of military pensions. Contact us today or call (813) 254-0156 to discuss your military divorce needs.

HCBA Military and Veterans Affairs Committee Invites You to a Luncheon/CLE

Title: Florida Family Law Involving Active Duty, Reserve and Veteran Military Personnel and Spouses

Speakers: Donald DeCort, Kristin Kirkner, Judge Christopher C. Nash

CLE Credits: 2.0

When: Thursday, April 28, 12 – 2 p.m.

Where: Chester H. Ferguson Law Center

Cost: $40 for members, $70 for non-members, $30 for government, student and affiliate members.

Click here to register.

 

Snapshot of the Military Lifestyle (Infographic)

There isn’t anyone out there who wouldn’t agree that military life is difficult. This survey details everyday stresses according to over 6,200 service members and spouses surveyed.

 

39% of military spouses feel stressed all the time; 30% of service members feel stressed all the time. With this much stress in the average service member’s life, marriage and relationships, it is not a surprise that a some military marriages end in divorce!

This infographic is an eye opener into what you and your spouse are experiencing, and will hopefully give you some insight as to what issues one another are dealing with. Understanding your spouse and their stresses can help keep your marriage together, even when it is at its most difficult time.

 

 

2014-military-family-lifestyle-survey-full

Source: https://www.bluestarfam.org/resources/2014-military-family-lifestyle-survey

If you are considering a divorce, and you are in the military please contact my office at 813-254-0156 to schedule your consultation. When dealing with the stresses of divorce the last thing you want to deal with is an attorney who is inexperienced with the nuances, and paperwork required with a military divorce.

 

What is the best custody arrangement for children after divorce?

What is the best custody arrangement for children after divorce?

What ‘New’ Studies Say Is Best For Children Of Fractured Homes

Trading weekends is out. Children need open access to both parents.

 

This is a great article I came across this morning on The Federalist by   about new research that indicates children of divorce are more tolerable of divorce when they have unrestricted, unlimited access to both parents. 

“What is the best custody arrangement for children after divorce? Most of us outside of family lawyers and courts don’t think about that question until we are faced with it. And then adults tend to choose administrative stability, figuring the kids are as exhausted and spent as themselves. Children of divorce face such an upheaval that it makes sense to adults that the children need time to rest and recover, and so we prioritize routine.

Certainly our custody assumptions support this kind of stability. Typically, one parent gets primary custody, while the other gets Wednesday evenings, every other weekend, half the summer, and alternating holidays. This is so normalized that I was recently encouraged to host a women’s event on Wednesday night because that’s when the kids of divorce are with their dads. It is widespread and predictable.
But those custody norms are informed by old research. We have new research now. In fact, we have enough research that we have long-term studies of children of divorce and meta studies—studies of those studies, a few of which I covered here last summer.

Grant Children Their Rights, Too

What children want and what children need—what they see as stability—is open access to both parents. From a 2000 paper by William V. Fabricus and Jeffery Hall on young adult perspectives on living arrangements after a divorce, reporting on their follow-up in the late ’90s with children of divorce they had studied in the ’70s:

“Earlier research on younger children’s perspectives on living arrangements has demonstrated that children desire free and frequent access to noncustodial parents. For example, Rosen (1979) found that 60% of children wanted unrestricted contact, regardless of whether the noncustodial parent was mother or father. Children repeatedly insisted that being able to see the noncustodial parents whenever they wished and being able to see that parent often made their parents’ divorces tolerable for them.

Kelly and Wallerstein (1977) reported that young children viewed the typical every-other-weekend visitation arrangement as severely inadequate. ‘The only younger children reasonably content with the visiting situation were those 7- and 8-year-olds visiting 2 or 3 times a week, most often by pedaling to their father’s apartment on a bicycle’ (p. 52).

…The perspectives of young children, although compelling, have not had much influence in public policy debates about custody and visitation. Young children’s feelings may be suspected of being relatively temporary, malleable, and ultimately not strongly connected to measurable outcomes. The public policy debate about custody and visitation has generally been framed in terms of parents’ (and, most recently, grandparents’) rights rather than children’s wishes (Mason, 1999). Thus, it is important that Wallerstein and Lewis (1998) have recently reported on the longitudinal follow-up of the perspectives of these children now that they are adults. Their report is based on a subsample of 25 respondents who were the youngest (now ages 27 to 32) in the longitudinal study.”

Wallerstein and Lewis (1998) found that many of their respondents reported that their visitation schedules with their fathers had been too disruptive and too inflexible and that when this was true they got little enjoyment or benefit from visitation in the way of enhanced relationships with their fathers. As adults, they feel strongly now, as they did then, that their wishes should have been taken into account, and they remain angry and resentful that they were not.

But the children’s desires have had a hard time breaking through the conventional wisdom. Myths about single-adult attachment and simple routines persist. Considering the relative advantages for children of intact families, that children need both parents should not surprise us. Yet it does.

Historical and Practical Ruts
Divorce wasn’t commonplace until the 1970’s. Before then, social scientists studied orphaned children and mother and young child attachment. Mothers were the primary caregivers of children, so studying them first made sense. Then, when the divorce rate spiked, courts didn’t have other information to advise them about the best custody arrangements for children. They granted primary mother care based on the only available research and the prevailing cultural practice. Then social science started to study the effects of a fractured family or father absence.

After about four decades of such studies, we have another answer to “What is best for the children?” (Or really we find another example of being led astray by data that our common sense should have warned us to be wary of back in the ’70s.) Absent extenuating circumstances such as abuse, children children need open access to both parents.

Advocacy groups for children of fractured homes are opening all over the world trying to break though the old myths with the new studies. They typically seek a presumption of shared parenting rather than the current unstated presumption of primary maternal custody, which covers for an epidemic of familial alienation when the sole-custody parent restricts visitation by other family members.

Simply, courts should grant shared custody, roughly 60 to 40 percent splits of time, to divorcing parents unless presented with clear and convincing evidence that this arrangement is not in the best interest of the child. Abuse, addiction, instability—evidence of each could prompt the court to grant custody to one parent. The court would simply start from the idea that the child should have time with each parent.

The Opposition: Lawyers and Feminists
As simple and logical as that presumption sounds, the two main groups actively resistant to shared parenting make for powerful opposition: lawyers and, paradoxically, feminists. That lawyers oppose shared parenting makes sense. Shared parenting arrangements tend to reduce parental conflict and therefore the continued need for lawyers and their fees. (See generally, the myths link above, page 3 and studies cited in footnotes 16-21.) But feminists, a group often heard demanding more domestic participation from fathers and who we might expect to vehemently object to the old legal assumptions that expect the mother to provide primary care for children, their opposition to shared parenting makes no sense.

In other contexts, feminists complain about the cultural assumptions of childrearing putting an unfair burden on women, but when the law tries to redress that burden and demand that parents share in childrearing, then feminists object. Why? Since courts have overwhelmingly awarded primary custody to mothers in the past, feminists see shared parenting as part of the men’s rights movement. They object to shared parenting as men trying to usurp women’s power by trying to assume the parental responsibility women normally assume, as an attempt to lower child support payments, and as society failing to protect women from abusive men. A particularly tight contortion in reasoning from a recommendation of the National Association of Women and the Law in Canada, where a shared parenting law was defeated back in May.

In fact, as long as women remain the primary caregivers of children, women’s equality is in the best interests of children, and law reform can and must simultaneously take into account and promote both the best interests of children and the equality interests of women.

So while the assumptions about mother care hold, then the assumptions should be followed? I thought feminism was, partially, about breaking assumptions about women’s roles. (Pause here for a moment to ponder that although non-feminists keep getting lectured about how feminism isn’t anti-men, their actions suggest otherwise. They turn their own goals inside-out for simple spite.)

Playing to type, in the North Dakota political battle over the “new and improved” Measure 6, the only active vote for a presumption for shared parenting in this U.S. election cycle, the group running the opposition campaign is all lawyers plus a male pastor and a female domestic violence advocate—and they seem to be using State Bar resources to oppose the legislation. The group that sponsored the measure, however, isn’t the stereotypical men’s rights groups. That group is all women.

Shared parenting is about family.
There are many fathers’ rights groups who support shared parenting, of course, but that is only because fathers are usually the alienated parent. I’m a member of Leading Women for Shared Parenting and the stories we receive in that organization are overwhelmingly from women. Some are mothers who hardly see their children. Others are grandmothers and aunts who cannot see their grandchildren, nieces, or nephews, because their son or brother is denied access to his children. The heartache strains other family relationships, like the distraught father who avoids talking to his mother so he can keep his angst from overflowing or the mortified sister who inadvertently posted a FB link that upset the alienating parent and ended the little contact her brother had with his children.

Shared parenting isn’t about fathers’ rights. It isn’t even just about children’s rights, although their hurts are certainly the deepest because they last a lifetime. Shared parenting is about family. Divorce is hard enough, severing the family’s spirit. Physically splitting the family as a matter of course means those spiritual wounds cannot heal for anyone, especially the children.

It is time to stop playing money and politics over children from fractured homes. They have enough to deal with. We should do what is best for them. And the four decades of studies really just tell us what we intuitively know: Children need their parents—both of them.”

Should you have any questions or concerns in your own child custody case and would like to seek legal counsel, please fill out the form below and my office will be in touch with you to set up a consultation.

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What are the Military Divorce Laws?

What are the Military Divorce Laws?

Military Divorce laws don’t actually exist, but the military does have standard regulations commonly applied to divorces.

 

By Kristin R.H. Kirkner, B.C.S.

The state courts have the sole and exclusive jurisdiction over divorces, so the term “military divorce laws” is somewhat misleading. However, the military does have some regulations or rules that are commonly applied to divorces:
1. Service member’s Civil Relief Act (SCRA): If the member’s military service prevents the member from participating in the divorce proceeding, the member can ask the court for a “stay” or to essentially delay the proceedings until the member is available.

2. Family Support: This will be addressed more in depth in a subsequent post, but each branch has family support regulations in the absence of a court order. It is possible that the member’s chain of command would be called upon by the non-member spouse or the spouse’s attorney to enforce these regulations either before, or in lieu of, temporary relief.

3. Conduct Unbecoming: Extramarital relations, fraternization and failure to support the family during a separation or dissolution can be reported to the chain of command and may have consequences including loss of rank, loss of pay or forced retirement. While it may seem tempting to report every misdeed, remember that if there is no source of income, it is difficult to get child support and alimony payments on time. Talk to an attorney who regularly deals with cases involving military members before taking this course of action.

4. Military Protection Order: In some situations, particularly when there are allegations of abuse, the military may impose a military protection order. A military protection order is the military equivalent of a no contact order or a restraining order, but it can be enforced through UCMJ. The requirements for a military protection order (MPO) are different than the requirements for an injunction in civil court so if you believe that you are in danger or need protection, it is important to explore your options with an attorney who is familiar with all of your options, both through the court and through the military.

5. Direct payment of Retirement from DFAS: DFAS will make direct payment to the former spouse when 10 years of service overlaps 10 years of the marriage. The State Court will divide the retirement regardless of the length of the marriage, it is only the direct payment that requires a 10 year overlap.

6. Jurisdiction: Military regulations allow a member’s home state to be different from the state of driver’s license issue, which is likely different from their duty station. These military regulations result in members having exposure to jurisdiction in multiple states, based on “home of record, state of driver’s license issue, physical location and proximate residency. The Jurisdictional issues in divorce cases involving military members and their spouses are complex and require someone who is well versed in navigating the logistics of jurisdiction to make sure that you are proceeding in the best state for you and your family.

If you would like a consultation, please fill out the form below and my office will contact you shortly to schedule an appointment. Military divorce “laws” can be complex; work with someone who is extremely knowledgeable in both military and divorce matters.

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