Thomas D Farrell Farrell amp Associates Honolulu Hawaii David L Manz The Manz Law Firm Marathon Florida Moderators Russel Murray III AuroraDenver Colorado Anna ID: 605664
Download Presentation The PPT/PDF document "US Military Families in the Asia-Pacific" is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Slide1
US Military Families in the Asia-Pacific
Thomas D. Farrell, Farrell & Associates, Honolulu, Hawaii
David L.
Manz
, The
Manz
Law Firm, Marathon, Florida
Moderators: Russel Murray III, Aurora/Denver, Colorado
Anna
Meddin
, Orlando, FloridaSlide2Slide3
USPACOM FORWARD PRESENCESlide4Slide5
JAPAN:
50,000 US military
(Army – 2K, Navy 20K, USMC 16K, USAF 12K)
9,000 DOD civilians
5,000 dependentsSlide6
KOREA:
28,500 US military
20,000 Army, 8,000 USAF
200,000 US civilians
(not all DOD affiliated)
(TDF estimate 30,000 dependents)Slide7
HAWAII:
50,000 US military
25,000? DOD civilians
64,000 military dependents
GUAM
6,000 US military
2,000? DOD civilians
10,000? military dependents
Hey, we’re in the Pacific, too!
(but we’re not foreign countries)Slide8Slide9
Status of Forces Agreements
Binding treaties between US and host nation
Covers US military, DOD civilians, some contractors, and their dependents,
Determines who has criminal jurisdiction, and what protections will be afforded US personnel charged with crimes by host nation
Determines process for claims against US
Determines entry/exit, visa and customs requirements
Determines access to civil court systemSlide10
Command Sponsorship
Not automatic—some tours are “unaccompanied.”
Entitles family members to protection of SOFA.
Can be withdrawn by the command.
May affect family members ability to remain in host nation.
Entitles family to certain benefits, such as family housing, DOD schools, priority for employment on base, transportation and shipment of household goods.
Does not affect certain other benefits, such as medical care, access to PX/Commissary, NEO.Slide11
Family Law in Japan
SOFA does not address access to courts
No Fault—sort of (other grave reasons)
No Alimony
Minimal child support
Custody usually to mom with no visitation to dad
Premarital property awarded to owner
Other property goes to owner unless obtained thru cooperation of both
Law of Japan applies for “
immovables
” in Japan
Law of Japan applies of one spouse is Japanese and “habitually resides” there
Adultery is not a crimeSlide12
Family Law in Korea
SOFA civil courts open to US military personnel
No Fault only by mutual consent
No Alimony
Minimal child support, poor enforcement
Parenting plan required, court awards “fostering” according to best interest, with visitation to other parent
Premarital property awarded to owner
Other property in discretion of the court
Law of common nationality applies
Law of Korea applies
i
f one spouse is Korean and “habitually resides” there
Adultery is a crime, and grounds for compensationSlide13
The “Family Advocacy Program”
Used to deal with child abuse and family violence.
A tool of the commander.
Case Review Committee makes determinations whether allegations of abuse are “substantiated.”
Can require SM to participate in therapy, classes, etc.
Can recommend non member participate in therapy, classes, etc.
No due process.Slide14
Early Return of Dependents
Humanitarian reasons
Request of member spouse
Request of nonmember spouse
Family violence
Misbehavior by dependentsSlide15
Military Protective OrdersSlide16
Uniform across
DoD
Easier and faster than Family Court
No hearing, no trial, no appeal
Can only be used against service member
Violations punishable under UCMJSlide17Slide18Slide19
Military Support Regs
Rule No. 1
:
The military will enforce a court order.
Rule No. 2
:
The military will enforce an agreement.Rule No. 3:
The military will use its own rules if No. 1 and No. 2 don’t apply.Slide20
LEGMAN P.5800.16a
primarily based on percentage of housing allowance
“The Air Force has no authority to arbitrate disputed cases of non support . . .”
NAVPERSINT 1715.030
simple, very punitive, based on gross pay per family member
AR 608-99
unbelievably complicated, 48 pages of single spaced 8 point typeSlide21
“The Marine Corps will not serve as a haven for personnel who fail to provide adequate and continuous support for their family members.”
Marine Corps
Interim Financial Standards
Total
of Family Members Entitled to Support
Minimum
Amount of Monthly Support per Requesting Family Member
Share
of Monthly BAH/OHA per requesting Family Member
1
$350
1/2
2
$286
1/3
3
$233
1/4
4
$200
1/5
5
$174
1/6
6 or more
$152
1/7, etc.Slide22
Example: E5 with wife and two kids.
Marine Corps Regs:
“BAH with” is $1,794
Member pays greater of $233 per dependent
OR
¾ (¼ per dependent) of “BAH with”
Member pays $1345
Hawaii Family Court:Assume nonmember spouse is CP
Assume CP has 0 incomeAssume NCP makes $4,700Assume no day care, SM pays $29
Tricare DentalAssume not in military housingCSGW support =
$1,180Alimony = ?Slide23
Same case, CP works and has day care.
Marine Corps Regs:
“BAH with” is $1,794
Member pays greater of $233 per dependent
OR
¾ (¼ per dependent) of “BAH with”
Member pays $1345
Hawaii Family Court:Assume nonmember spouse is CP
Assume CP makes $2,500Assume NCP makes $4,700Assume $600 day care paid by CP, SM pays $29
Tricare DentalAssume not in family housingCSGW support =
$1,660Alimony?Slide24
Same case, NCP is in the Navy
Navy Regs:
Member pays 3/5 of “gross pay”
(1/3 for spouse, ½ for spouse +1, 3/5 for spouse plus two or more)
Member pays
$2,820
Hawaii Family Court:
Assume nonmember spouse is CPAssume CP makes $2,500
Assume NCP makes $4,700Assume $600 day care paid by CP, SM pays $29 Tricare Dental
Assume not in family housingCSGW support = $1,660
Alimony?Slide25
Same case, NCP is in the Army
Army Regs:
Family Residing in
miltary
housing – Member pays
$0
Family not residing in military housing - Member pays “BAH-with,” in this case, $1,794
Hawaii Family Court:
Assume nonmember spouse is CPAssume CP makes $2,500Assume NCP makes $4,700
Assume $600 day care paid by CP, SM pays $29 Tricare DentalCSGW support =
$1,660But if family resides in military housing, that costs the SM $1,794/mo, will the court treat that as a child support payment?Alimony?Slide26
No support if
:
Payor
is victim of
substantiated
abuse
Income of payee is greater than soldier’s military pay
A court order exists but is silent on support
Payee is in jail
Soldier has paid for 18 months
Child has been kidnapped and soldier is attempting to regain custody
Spouse is guilty of marital infidelity (Navy)Slide27
The bottom line:
Whoever is advantaged by going to Family Court will likely seek relief there promptly
.Slide28
Security Clearances and Marriage to Foreign Nationals
(a bad mix)Slide29
The Adjudicative Guidelines
§ 147.4
Guideline B—Foreign influence
.
(a) The concern. A security risk may exist when an individual's immediate family, including cohabitants and other persons to whom he or she may be bound by affection, influence, or obligation are not citizens of the Untied States or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.
(b) Conditions that could raise a security concern and may be disqualifying include:
(1) An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country; (2) Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists;
(3) Relatives, cohabitants, or associates who are connected with any foreign government; (4) Failing to report, where required, associations with foreign nationals; (5) Unauthorized association with a suspected or known collaborator or employee of a foreign intelligence service;
(6) Conduct which may make the individual vulnerable to coercion, exploitation, or pressure by a foreign government; (7) Indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, coercion or pressure;
(8) A substantial financial interest in a country, or in any foreign owned or operated business that could make the individual vulnerable to foreign influence. (c) Conditions that could mitigate security concerns include: (1) A determination that the immediate family member(s) (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States;
(2) Contacts with foreign citizens are the result of official United States Government business;
(3) Contact and correspondence with foreign citizens are casual and infrequent;
(4) The individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons or organizations from a foreign country;
(5) Foreign financial interests are minimal and not sufficient to affect the individual's security responsibilities.Slide30
Domicile
The jurisdictional basis of divorce is domicile.
Three types of domicile:
Domicile by origin
Domicile by operation of law
Domicile by choiceSlide31
Establishing Domicile by Choice
Actual residence with physical presence
Intent to remain for an indefinite period of time
Intention to abandon old domicile
Voluntary
Exists until superseded
by a new domicileSlide32
Importance of Domicile
Servicemembers
experience involuntary mobility
The
Servicemembers
Civil Relief Act (
SCRA) allows Servicemembers to retain their domiciles for tax and voting purposesServicemembers are permitted to change domicile during serviceSlide33
Presumption of Domicile
Physical presence
Evidence of intent (written or oral)
Other affirmative acts
Moving family to state
Declaring residence in state documents and other documents
Paying taxes in that stateRegistered to vote in that stateSlide34
State Income Taxes
Many Servicemembers will elect to pay taxes in a state that is not their domicile in order to gain the tax benefits of that state
Simply filing a State of Legal Residence Certificate and opening a PO Box does not mean a change of domicile has taken placeSlide35
Home of Record
Refers to place to which the Defense Department will transport the Servicemember and household goods upon separation from service
Military administrative term and not the same as domicileSlide36
Residence
Physical location of person
Intent to remain not required
A person may have multiple residences as opposed to a person only having one domicile
Most states, including Florida, have a 6 month residency requirementSlide37
The Nonmilitary Spouse
The nonmilitary spouse is able to establish a domicile independent of the
Servicemember
The nonmilitary may lose benefits upon divorce or dissolution of marriage
Entitlement to live on base
Military ID card
Commissary and post exchange privilegesTRICARE and other health care benefitsSlide38
Servicemembers Civil Relief Act
Provides for the temporary suspension of judicial and administrative proceedings that might adversely affect the Servicemembers during their military serviceSlide39
Stay of Proceedings
A stay is defined as a suspension of a civil case until the
Servicemember
who is a party is available to participate
If no appearance is made:
Determine his/her military status
The court must decide whether to grant a stay of the proceedingsThe ability to prosecute or defend must be materially affectedSlide40
Requirements for Application for Stay
A statement as to how the
Servicemember’s
current military duties materially affect his/her ability to appear
Must state a date when the
Servicemember
will be available to appearStatement from Servicmember’s commanding officer that
Servicemember’s current military duty prevents his/her appearanceThe stay is not automatic of the time of the statementSlide41
Good Faith Requirement
Servicemember must demonstrate good faith and due diligence in his/her efforts to obtain military leave to appear in courtSlide42
Default Judgments
May not be obtained against a Servicemember in his/her absence unless the court follows the procedures set out in the SCRA
If Servicemember in military and the stay is denied, court must appoint an attorney
If attorney not appointed for Servicemember, the judgment is voidableSlide43
If Default Judgment is Entered
SCRA provides protection
Allows the Servicemember who has not received notice of the proceeding to move to reopen a default judgment.Slide44
Support Issues for Servicember’s Spouse
20/20/20
Twenty years of service
Twenty years of marriage
Twenty years of overlap
Former spouse entitled to full military medical careSlide45
Support Issue’s for Servicembmer’s Spouse (cont.)
20/20/15 (After April 1, 1985)
Twenty years of service
Twenty years of marriage
Fifteen years of overlap
Full medical benefits as long as spouse does not remarrySlide46
Support Issues for Servicemember’s Spouse (cont.)
20/20/15 (After April 1, 1985)
Former Spouse entitled to a specific length of time of enrollment.Slide47
Pension
There are three formulas used to calculate longevity retired pay.
The Date of Initial Entry into Military Service (DIEMS) determines which one will be used. Slide48
Fifty Percent Formula
For all Servicemembers whose DIEMS date is before Sept. 8, 1980:
2.5% x years of creditable service x final basic pay of SM = retirement pay, not to exceed 75% of final base pay
Cost of living adjustment (COLA) applied on Dec. 1 of every yearSlide49
High-3 Formula
DIEMS date is between Sept. 8, 1980 and July 31, 1986
2.5% x years of credible service x the average of the highest 36 months of basic pay (last 36 months before retirement average)
COLA appliedSlide50
REDUX Formula
If DIEMS is on or after Aug. 1, 1986, 2 options:
Servicemember
may choose the High-3 Formula; or
Servicemember
may choose the
REDUX formula:Must remain on duty for min. of 20 years and will receive a mid-career bonus of $30,000
Monthly retired pay is 40% of the average of the highest 3 years of basic pay after 20 years of credible serviceServicemember receives a 3.5% increase per year for additional years up to 30 credible yearsCOLA calculated at 1% less than inflation
At 62, the REDUX is recalculated and the REDUX retirees receive the equal monthly pension as the High-3 retireesSlide51
Uniform Services Former Spouses’ Protection Act
Passed by Congress to allow the state to divide military retired pay in divorce and equitable distribution proceedings on a uniformed basis
Provides that former spouse’s share cannot exceed 50% of the pension
Cannot force an
Servicemember
to retire
Payments cease upon Servicemember’s death
Provides no formula in dividing the pensionSlide52
Survivor Benefit Plan (SBP)
An annuity that replaces the pension, since the death of the Servicemember terminates pension payments.
Must clearly be stated in a separation agreement/property settlement agreement if one is intendedSlide53
Roadblocks to Stop Division of Pension
Jurisdiction
Domicile
Timeliness (must be asserted before the final judgment)
Waiver (pre-nuptial, post-nuptial, separation agreement)
Statutory Bar to Pension Division (pension must be vested – not all
states recognize this)Slide54
Disability Pay
Pursuant to the Uniformed Services Employment and Reemployment Rights Act:
Retired pay: Servicemember’s normal retired pay based on years of service x 2.5% x base pay
Disability pay: Base pay x disability rating
Retired pay (minus) disability pay ÷ 2 = non-military spouse’s shareSlide55
VA Disability Benefits
Applies when the extent of the disability is not so great to qualify for military disability or if the disability occurs or is detected after retirement.
The VA disability benefit of pension is tax free and is not subject to property distribution.
Therefore, non-military spouse receives:
Gross retired pay (minus) VA disability benefits ÷ 2 (minus) taxesSlide56
How to Divide the Military Pension
Reserve jurisdiction (puts off deciding the issue for another day until Servicemember is retired);
Deferred division (payments to non-military spouse begin when Servicemember starts receiving pension payments);
Present value offset (assets are traded against the present value of the pension). Slide57
Determining Deferred Division
Fixed dollar amount – determines how much per month that non-military spouse receives
Percentage clause – non-military spouse will receive a specified percentage of
Servicemember’s
disposable retirement pay
Formula or hypothetical scenario for grade and years of service: (typically) court will provide numerator (the months of marriage during which time the
Servicemember performed creditable military service) ÷ months of service upon retirement (be sure to include rank and years of service of the SM when award submitted)Slide58
Calculating Present Value Offset
Based on date of retirement:
(Period of marriage concurrent with pension service) ÷ (total period of pension service) multiplied by the pension benefit at date of retirement
Based on date of divorce:
(Period of marriage concurrent with pension service) ÷ (total creditable times as of the date of the marriage) multiplied by the pension benefit at the date of divorce
Valuation of the pension should exclude contributions or service after the divorceSlide59
Custody/Timesharing and the
SCRA
Military custodian is entitled to a stay of proceedings when absence from hearings is due to military serviceSlide60
Custody/Timesharing and the
SCRA
(cont.)
Factors to consider stay:
Importance of motion;
Significant evidence the
Servicemember can provide;The amount of time allowed to Servicemember to secure counsel and prepare a defense.A mere showing of active duty not sufficientSlide61
Mobilization and Deployment Clauses
Include clause in agreements of what is to happen to the custody of the children if an Servicemember is deployed
Include clause that Servicemember may have his/her family/relatives as a third party custodian so that they may still visit childrenSlide62
Jurisdictional Concerns
If there is a temporary change in custody/timesharing due to deployment, then stipulate that the “home state” of the child has not changed.
Initial state retains jurisdiction to issue subsequent orders.Slide63
Home State
The state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.Slide64
Custody/Timesharing for Servicemember
A popular assumption is that the
Servicemember
rarely gets majority timesharing. This is a misconception. The court examine the stability and continuity for the child and will consider the following factors:
Where extended family members live;
Where
Servicemember is living;
Willingness for one spouse to allow visitation with other spouse;If the non-military spouse is married to Servicemember with the possibility of relocating;Chance of tour of duty will be unaccompanied or can the child travel with the parent.Slide65
Deployment and Child Custody
Bottom line
: DOD is lobbying states to amend their custody laws to explicitly provide that changes of custody due to deployment are only temporary and child custody decisions cannot be “solely” based on a parent’s deployment or
deployability
. Some (including Hawaii) have done so. There is also a uniform act now circulating.
(Family court practitioners generally, but not universally, oppose this)Slide66
Family Care Plan
Used for long term absences.
Instructions for special power of attorneys to make decisions for the children while parent is away on duty.
May also include caregiver’s responsibilities, health care, dental, medical care.
May also include a “stand in” visitation/timesharing where the current wife of the Servicemember may stand in for visitations when the Servicemember is away
Also provide what is to happen upon the death of either parentSlide67
Questions?