Military Divorce- What's the Difference?

Getting a divorce when one or both spouses are military members or former military can present interesting challenges.  In dealing with a military divorce there are unique rules which govern the division of military retirement, impact of deployments on parenting, whether combat related special compensation is divisible, health care and other military benefits, to name a few. 

The Service Members Civil Relief Act or SCRA was designed to help deployed servicemembers stay civil proceeding that they are unable to attend.  SCRA applies to all judicial proceeding, including post-decree matters, and to administrive agencies.  SCRA covers active duty servicemembers, including reservists and mobilized members of the National Guard. The stay will generally last 90 days but can be extended. 

Child Custody.  What makes custody matters with servicemembers different?  A deployment will trigger the need to modify child custody orders.  Often the custody order will state that during a deployment, custody will transfer to the nonservice member.  However, under the Uniform Deployed Parent Custody and Visitation Act the servicemember may now delegate their parental rights to a third party.  One scenario where this often comes up is with a new spouse of a deployed servicemember.  The deployed servicemember can request that their new spouse be given their same custodial rights during deployment. 

Child Support.  When calculating child support the Court will look at base pay PLUS any housing allowance received, VA disability benefits, and any sustenance credits.    If the servicemember lives on base, the Court can impute the amount of housing allowance they would receive if they lived off base. 

Military Pension, Retirement and Benefits.  Retirement for active duty servicemembers comes after they have obtained 20 years of active duty service.  Retired pay can be calculated one of 2 ways.  If the Date of Initial Entry to Military Service (DIEMS) is before September 8, 1980 the formula will use the final base pay at the time of retirement.  If the DIEMS is after September 8, 1980, then it is a High-3 formula, which takes the average of the highest 36 months of base pay as the amount for the final base pay.  If the servicemember took a Career Status Bonus election between 14.5 and 15 years of service, this will change the pension landscape entirely.  Military pensions have unique aspects to them, very different from civilian pensions.

Thrift Savings Plan (TSP).  Servicemembers may now contribute up to 7% of their basic pay to a TSP, but with no matching funds from the federal government.  It is similar to a private sector 401(k) plan in that taxes are deferred on the contributions and appreciation until disbursement.  A Court must sign a Retirement Order to divide the TSP. 

Survivor Benefit Plan (SBP).  SBP is an annuity program that allow retired (and retirement eligible) active-duty servicemembers to provide income to SBP beneficiaries upon death of the servicemember.  It has a premium, and a payout in the form of a monthly payment from DFAS.  Without the SBP, if the retiree dies, the military retirement stops as well.  However, to protect a surviving former spouse’s share of military retirement after a divorce, a Court can require a servicemember to elect former spouse SBP coverage.  As the retiree can only have one beneficiary (except for children coverage), one effect of court-ordered SBP coverage for a former spouse is that if the service member remarries, the new spouse or children are precluded from coverage. In the event of the servicemember’s death, the former spouse receives a monthly payment of 55% of the designated base amount.  The cost for the SBP premium is typically 6.5% of the designated base amount although there are other options available for those entering service before March 1, 1990.  There is not a way to force DFAS to allocate the premium so that the full share comes from one party’s share of the pension. The cost must come "off the top". However, there exist other options to get around this.  If the former spouse gets remarried before age 55, the SBP will terminate. 

Healthcare.  A former spouse who was married to a servicemember for at least 20 years qualifies for military health benefits, or Tricare.  A former spouse will receive full benefits under the 20/20/20 Rule if they were married to the servicemember for at least 20 years, the servicemember has at least 20 years of service, and that the marriage and service overlap for at least 20 years.  If this criteria is met, the servicemember will receive Tricare for life.  For 15 years of marriage/service with 20 years of total service the former spouse will receive Tricare for one year.  Medical benefits terminate upon the former spouse’s remarriage.  If the servicemember has fewer that 20 years of service, the former spouse is NOT entitled to such benefits.

Hiring an attorney is an important decision.  If you are a servicemember or married to a servicemember, make sure your attorney has experience with military divorce issues.  If you wish to learn more, please give us a call at 240-396-4373.

Prenuptial Agreements

Potential clients often inquire about prenuptial agreements and why it may or may not be desirable or necessary to have one signed prior to getting married.

Prenuptial agreements are most often used to protect assets in the event of a divorce, but can also include a complete waiver or a cap on alimony, and can modify legal entitlement to assets in the event of death. 

A prenuptial agreement defines "separate" assets, which are those that are to be excluded from division by the parties in the event of a divorce. The definition of "separate" can be narrowly defined or broadly defined.  Separate assets can be limited to premarital, gifts or inherited assets. Or, separate assets can be defined to include any assets held by either party, regardless of whether the asset was accrued or obtained before the marriage or after.

Prenuptial agreements are popular among the “second marriage” crowd, particularly when the parties have accrued significant assets or have children from a previous union.  In such cases, a party may want to provide for his/her child(ren) in their estate planning and ensure that their assets go to their children as opposed to their new spouse. A prenuptial agreement can be a very effective way to do this. 

Prenuptial agreements can be as unique as the couples themselves. Life insurance, titling of current or future homes, retirement benefits and death benefits can all be addressed. 

It is recommended that both parties obtain independent counsel. One attorney cannot represent both parties in the negotiation and drafting of a prenuptial agreement. The agreement is premised on full disclosure and both parties must understand what they are signing. If you wish to learn more, or wish to have a prenuptial agreement drafted for you, please click here to contact us or call us at 240-396-4373.

Custody Evaluations: Are they Worth It?

        Custody evaluations are great tools that can be utilized in the context of a contested custody case, but they can be cost prohibitive.  The uses and benefits tend to outweigh the cost, which is why attorneys continue to request them. This article addresses "private" custody evaluations, which are privately retained by the parties, or are court-appointed based on one party’s motion or a joint motion. It is important to remember that some courts provide free custody evaluations, so in the jurisdictions that do so, they are highly sought after.

            What can custody evaluations be used for? Most simply, they are a single place to find information, and more importantly, a single report or witness to present as evidence or testimony to the judge. In terms of trial, it is much more efficient to present the evaluator and his or her report, rather than parading a child’s entire network of family, friends, and teachers through the courtroom.

            Custody evaluators also have the luxury of taking time to see how all the different pieces of information fit together, and ask follow up questions to get the full picture, and can present the information from a neutral, third party perspective. Judges, on the other hand, are forced to take the evidence as presented, and hope that the system of direct and cross examining witnesses has done enough to minimize any bias that exists in the witness.

            Custody evaluations are a full spectrum analysis, involving multiple issues, many interviews, and many hours to provide as complete an evaluation as possible. The process takes approximately fifty hours over the course of three to six months, at minimum. For cases in which the parents are farther apart in their beliefs of the child’s best interests, the process could take longer. Full custody evaluations can cost approximately $20,000 on the low end, but can easily be more costly.  The evaluation can be quite costly, but the result can often help determine the direction of the case.

            A second option for cases that have smaller, more limited questions regarding the children is a brief focused assessment, or specific issue evaluation. Topics that tend to lend themselves to a brief focused assessment include the child’s attachment level to each parent, relocation research, determining the child’s developmental level, and determining the child’s wishes. A brief focused assessment regarding the child’s wishes is a unique way to present the child’s desires without putting the child through the ordeal of testifying in court.

            These brief focused assessments can be completed in as few as four to six weeks, and cost closer to $5,000. These assessments are faster and less expensive because they are so narrowed in scope that the amount of people the evaluator must interview is significantly decreased, so the process moves much quicker. However, the brief focused assessments provide the same benefits to a judge, simply on a much more limited scale.

            Custody evaluations and brief focused assessments are performed by mental health professionals such as psychologists, psychiatrists, licensed clinical marriage and family therapists or licensed certified social workers-clinical (LSCW-C).

            In sum, despite the hefty price tag, it’s safe to say that custody evaluations, in one form or another, will continue to be used in family practice. Their benefits and uses are significant, and typically justify the associated costs.

Visitation Resistance

In separated and divorcing families we will often see cases where a child refuses to visit or have contact with one parent.  There are many reasons a child will give for the refusal, ranging all the way from serious abuse to one parent allowing more freedoms than the other.  The parent whom the child refuses to see may accuse the child-aligned of "parent alienation". In the 1980’s psychiatrist Richard Gardner coined the phrase Parental Alienation Syndrome (PAS).  Some debate exists about whether PAS is a syndrome in the classic term, which is capable of being diagnosed.  However, the phenomenon of parental alienation is typically defined as the psychological manipulation of a child into showing unwarranted fear, disrespect or hostility towards a parent.  These cases can get difficult when the Court orders access between the parent and child and the child refuses to go or goes but acts out in protest while with that parent. 

In these cases, one tactic parties and the Courts have started to utilize is Reunification Therapy between the child and the alienated parent.    Reunification therapy involves both parents and the child in the therapy process.  Usually the therapist will meet with each party separately but will also have joint sessions.  Joint sessions between the child and the alienated parent focus on addressing cognitive distortions by the child, coaching the parent to interact more positively, and to avoid blaming and bashing of the other parent. 

To learn more about child visitation resistance contact the attorneys at Markham Law Firm today by calling (240) 396-4373.

Happy New Year from Markham Law Firm!

Congratulations to Leslie Miller

Leslie Miller has just been appointed as the Treasurer of the Montgomery County Women's Bar Association.  In this role, she will also serve on the Board of Directors.  

http://www.mocowba.com/officers/

The Women’s Bar Association of Maryland (WBA) is an organization of women and men committed to the full and equal participation of women in the legal profession and in a just society. The WBA believes that a strong community of women in the legal profession is essential to the administration of justice. The mission and goals of the WBA are to: 

• Promote and assist women to obtain positions of influence and leadership within their workplace, the legal profession, the judiciary, and the community; 
• Raise awareness of and fight biases against women within the community at large, the legal profession, and under the law; 
• Promote and effect diversity, equality and justice under the law and within the legal system; 
• Support women in the legal profession in their personal and professional lives; 
• Provide opportunities for volunteerism and advocacy on issues affecting women; 
• Collaborate with other individuals and organizations to improve the status of women; 
• Celebrate the individual and collective achievements of women in the legal profession; and 
• Promote full and equal participation of women in society by eliminating all forms of discrimination. 

Women in the Law Interview

Check out my interview on "Women Leading The Way In Law" Podcast- https://itun.es/i67x25n  #iTunes. Or: http://directory.libsyn.com/episode/index/id/4880554

DC SuperLawyers Rising Star 2016

Congratulations to Jillian Morris for being selected as a 2016 Rising Star in Washington DC SuperLawyers Magazine!

Congratulations to Leslie Miller

Ms. Miller was sworn into the Maryland Bar today!  Congratulations!

2016 Daily Record Leading Women Honor

Baltimore, Md., (October 6, 2016) — The Daily Record selected Ms. Markham to receive one of the 2016 Leading Women awards.

The Daily Record’s Leading Women awards honor 50 women who are 40 years of age or younger for the accomplishments they have made so far in their careers. A panel of previous Top 100 Women and Leading Women winners selected the honorees based on their professional experience, community involvement and commitment to inspiring change. 

  "The Daily Record's 2016 Leading Women are truly inspirational. Their professional accomplishments, community involvement and commitment to inspiring change exemplifies why they are Leading Women in Maryland," said Suzanne Fischer-Huettner, publisher of The Daily Record. "They excel to high levels professionally and personally, and The Daily Record congratulates them on this award."