Selecting an Attorney to Handle a Military Divorce

It is critical to have an attorney that is knowledgeable in the law, either as the primary counsel, or expert advisor to the divorce attorney. In my experience it is more important to focus on finding the best domestic relations attorney you can afford rather than focusing on finding one who says that he/she is familiar with the Uniformed Services Former Spouses' Protection Act (USFSPA). There are many vital issues in a divorce beyond the division of the retirement. An expert advisor can fill in the gaps in knowledge concerning the USFSPA, but such an advisor cannot make a mediocre attorney into a superior practitioner.

In selecting an attorney one should not make the mistake of assuming that an attorney is knowledgeable about the USFSPA just because he or she is a retired officer or judge advocate. It is also a mistake to assume that all legal assistance officers are familiar with the law. As the former director of the Air Force legal assistance program, I would like to think that all legal assistance officers are equipped to counsel members on the ins and outs of the Former Spouses' Protection Act. But this is absolutely not true. I won't give a litany of horror stories, but there are many.

Remember: "Wrong or incomplete information or advice are worse than no information or advice."

Many people facing divorce choose to retain an expert as a resource to fill in the gaps of the knowledge of their domestic relations attorney.

For those who do not, here is a checklist of questions to use to evaluate the divorce attorney who says that he or she is knowledgeable in the USFSPA. It is not intended to be all inclusive, but it is a good place to start. The client should not hesitate to ask such questions, and if the lawyer is offended or defensive, the client should continue the search for a new attorney. I can assure you that if the lawyer's child needs brain surgery, the surgeon is going to be scrutinized very carefully by the lawyer. To continue the analogy, the lawyer is not going to be satisfied with the family doctor that treats the family's colds and flu.

Here are the "make or break" questions. That is, if the attorney fails any one of these, then look elsewhere, or retain a consultant to assist the attorney. But, frankly, I would have no confidence in an attorney who represented that he/she is skilled in military divorce who failed these critical tests.

Show me a copy of the reference book you use on the FSPA.

Comment: The attorney must produce a copy of the American Bar Association book, "Military Retirements Benefits in Divorce". Although it was published in 1998, it is still the only authoritative book on the topic, and a must in the library of any attorney who works in this area.

Explain to me the concept of "disposable retired pay" and why it is important.

Comment: The attorney must produce a current copy of title 10 United States Code, Section 1408(a)(4) and explain each item that is deducted in arriving at DRP. The attorney must then explain how the concept of DRP is relevant in every case, and how it controls what the pay centers will pay. If you are a member, the attorney must explain how you can take advantage of the concept. If you are the non-member, the attorney must explain how the DRP limitations can be confronted.

The above discussion must specifically address the matter of retired pay waived in order for the retiree to receive VA disability compensation. This must include a discussion of which retirees are able to receive both retired pay and VA payments.

If you are the non-member: How would the death of the member both before and after retirement affect my benefits?

Comment: Here is a summary of how I explain this issue to a client:

In a nutshell, if a member is dead, there is no retirement to pay to a former spouse, no matter what the court ordered. (This is not true of some corporate or union plans.) That is, if the member dies before retirement, the former spouse does not receive the first penny. And if the member dies after retirement, payments to the former spouse end.

Knowing this, there are several possible observations about the loss of the income stream:

• It does not matter, I don't need the money anyway.
• I will die before the member.
• It is not OK to have this risk.

If one wants to protect the income stream, then there are these alternatives: the service Survivor Benefit Plan, or some commercial alternatives such as life insurance or an annuity.

I then go on to explain each alternative in detail.

The attorney must understand that payments are dependent on the retiree's living to retirement and beyond, and that there are several ways of protecting the income stream. An extensive discussion of the ins and outs of the survivor benefit plan are beyond the scope of this article, but the attorney must know about the SBP inside and out. And the attorney should understand the differences between the SBP for active members and the "Reserve-Component Survivor Benefit Plan" for members of the guard and reserve.

The attorney must also be able to explain the process by which a former spouse establishes SBP coverage. This discussion must include an explanation of the "deemed election" process, and the one year time requirements for establishing former spouse coverage.

The Act contains a special jurisdictional limitation on the power of a state court to divide retirement. Please explain it?

Comment: The attorney should thoroughly explain the limitations of 10 USC Section 1408(c)(4). In a nutshell, even if a state court has, under the state rules, power to end the marriage and divide other property, the federal laws controls the circumstances under which a state court has the power to treat retired pay as property.

If you are the non-member, you do not want to go through the divorce process and have an order awarding you a part of the retirement, only to find out that you have to go to another state and bring an action there to actually entitle you to a part of the retirement.

If you are the member, you will want to understand this concept as you prepare your strategy for dealing with the division of your retirement.

While the following are very important, they are not "make or break", but if the attorney fails on quite a few of these, then look elsewhere for your attorney or retain a consultant, such as myself, to work with the local attorney.

1. How many cases have you handled in the past year that involved military retired pay?
2. How many of these cases went to trial and how many were settled?
3. In how many did you represent the member and in how many did you represent the non-member spouse?
4. What articles or publications have you read on the subject in the past year?
5. How many hours of Continuing Legal Education do you have on this subject?
6. When was the last time that you read the federal statute that covers the division of military retired pay?
7. Please explain to me the highlights of the amendments to the Act that were passed in 1990.
8. What is the Code of Federal Regulations?
9. Does it have anything in it that deals with military divorces?
10. What is the Servicemembers' Civil Relief Act and how does it relate to this action?
11. What are the limitations on obtaining direct payment from the pay center?
12. How long does a spouse have to be married to a member in order for there to be an award of part of retired pay as property?
13. How is maintenance treated differently under the Act from an award of retired pay as property?
14. How is child support treated differently under the Act from an award of retired pay as property?
15. Explain to me how the division of retired pay would be affected if the member goes to work for civil service?
16. If the member merges a military retirement and a civil service retirement, how could that affect a former spouse's income stream?
17. What happens to the payments to the former spouse if she/he dies before the member?
18. When can a former spouse keep full ID card benefits?
19. Can a court order a member to provide survivor benefit plan protection for the former spouse?
20. Tell me about the new SBP "open season" and how it could affect my case.
21. Who will pay the premiums of the SBP after the divorce?
22. What is the income tax consequence of a division of retired pay as property and payments of maintenance out of retired pay?
23. How is the retirement computed for a military member if the member retires with an active duty retirement?
24. How is it computed for a member of the reserves and national guard?
25. How does this state divide the retirement when the member is still on active duty?

If the attorney cannot answer all of these questions, it is not necessarily a sign of incompetence. However the lawyer should at least understand why the questions are relevant. In my experience, many attorneys who sincerely believe they are equipped to handle a military divorce do not understand their lack of knowledge because "they do not know what they do not know". In other words, they vastly underestimate the complexity of the subject. (And, by the way, this is true of the division of any kind of retirement.)

In preparing for your search for an attorney, please read my companion article, "You Have the Right to a Competent Attorney or The Very Best Attorneys are Nice People" that you may find elsewhere on this web site.