US Military Families in the Asia-Pacific - PowerPoint Presentation

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, FloridaSlide2
Slide3

USPACOM FORWARD PRESENCESlide4
Slide5

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)Slide8
Slide9

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Can be withdrawn by the command.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 UCMJSlide17
Slide18
Slide19

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?