divorCe for veterAns: KnoW WhAt you don’t KnoW!
Military & Veterans Affairs Committee
Chairs: Sonya Colon – Law Office of Sonya C. Colon, P.A. and Robert Nader – Nader Mediation Services
divorces involving
veterans are ripe for
malpractice claims,
and you need to make
T
he biggest key to
handling a dissolution
of marriage case
involving a veteran or
their spouse is to know what you
don’t know. Here are five hot areas
to look out for in your practice:
1. Pension Division: Not all
military pensions are created
equal, and not all components
of the pension are divisible.
Consider active vs. reserve
pensions, traditional vs.
blended retirement system, VA
disability waivers, Concurrent
Retirement and Disability
Pay (CRDP), Combat-Related
Special Compensation (CRSC),
and Chapter 61 retirement
pay. It is critical to know what
is divisible, what is not, and
what Defense Finance and
Accounting Services (DFAS)
will pay out.
2. DFAS Regulations: The
court can order the most
eloquent relief possible, but if
the order doesn’t conform to
the requirements set out in the
Uniformed Services Former
Spouse’s Protection Act
(USFSPA), 10 U.S.C. 1408,
DFAS isn’t going to make
direct payment. In order for
DFAS to pay a former spouse
directly, the parties must have
been married for ten years
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sure that all details are
handled competently.
that overlap with ten years
of the member’s service, the
court must have jurisdiction
to divide the pension, and
the court must observe
member’s rights under the
Servicemember’s Civil Relief
Act (SCRA). This does not
mean that the pension is not
a divisible asset in marriages
less than ten years, it just
means that the member will
need to make direct payment
instead of payment going
through DFAS.
3. Security for Pension: The
pension stops paying both
parties when the member dies.
If the spouse will depend on
the pension to pay living
expenses, consider the
best vehicle to secure that
payment, either through a
life insurance policy or
through the Survivor Benefit
Plan (SBP). The SBP pays
the spouse monthly after the
member’s death and until
the spouse’s death. The plan
is available to all retiring
members, and the member
must elect SBP at the time
of the retirement. There
are no physical examinations
or requirements, and the
premium does not increase
with the member’s age.
However, if the spouse
remarries before the age of
55, the spouse will not be
eligible to collect on the SBP.
In contrast, life insurance may
be a lower cost option while
the member is young, but
dramatically increase in cost
later on in life. Consider not
only the best method for
securing this asset, but who
will bear the cost for this
security. Finally, if your client
is the beneficiary of SBP,
they must make a “deemed
election” for the SBP
beneficiary designation
within one year from the
final judgment.
4. Income for Support:
Pursuant to Fla. Stat.
§61.30(2), the court shall
consider all sources of
income available to either
party. This means that you
need to do the pension
division calculation before
you do the support calculation.
This also means that VA
compensation, basic allowance
for housing, and basic
allowance for subsistence are
included in the income for
support purposes.
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HCBA LAWYER