US Military Families in the Asia-PacificThomas D. Farrell, Farrell & Associates, Honolulu, HawaiiDavid L. Manz, The Manz Law Firm, Marathon, FloridaModerators: Russel Murray III, Aurora/Denver, Colorado Anna Meddin, Orlando, Florida

USPACOM FORWARD PRESENCE

JAPAN:50,000 US military(Army – 2K, Navy 20K, USMC 16K, USAF 12K)

9,000 DOD civilians5,000 dependents

KOREA:28,500 US military20,000 Army, 8,000 USAF

200,000 US civilians (not all DOD affiliated)(TDF estimate 30,000 dependents)

HAWAII:50,000 US military25,000? DOD civilians64,000 military dependents

GUAM6,000 US military2,000? DOD civilians10,000? military dependents

Hey, we’re in the Pacific, too!

(but we’re not foreign countries)

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 system

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• Can be withdrawn by the command.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.

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 crime

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 if one spouse is Korean

and “habitually resides” there• Adultery is a crime, and grounds for

compensation

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.

Early Return of Dependents• Humanitarian reasons

• Request of member spouse

• Request of nonmember spouse

• Family violence

• Misbehavior by dependents

Military Protective Orders

• 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 UCMJ

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.

LEGMAN P.5800.16aprimarily based on percentage of housing allowance

“The Air Force has no authority to arbitrate disputed cases of non support . . .”

NAVPERSINT 1715.030simple, very punitive, based on gross pay per family member

AR 608-99unbelievably complicated, 48 pages of single spaced 8 point type

“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.

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 income• Assume NCP makes $4,700• Assume no day care, SM

pays $29 Tricare Dental• Assume not in military

housing• CSGW support = $1,180• Alimony = ?

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 $2,500• Assume NCP makes $4,700• Assume $600 day care paid

by CP, SM pays $29 Tricare Dental

• Assume not in family housing• CSGW support = $1,660• Alimony?

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 CP• Assume CP makes $2,500• Assume NCP makes $4,700• Assume $600 day care paid

by CP, SM pays $29 Tricare Dental

• Assume not in family housing• CSGW support = $1,660• Alimony?

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 CP• Assume CP makes $2,500• Assume NCP makes $4,700• Assume $600 day care paid by CP,

SM pays $29 Tricare Dental• CSGW support = $1,660• But if family resides in military

housing, that costs the SM $1,794/mo, will the court treat that as a child support payment?

• Alimony?

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)

The bottom line:

Whoever is advantaged by going to Family Court will

likely seek relief there promptly.

Security Clearances and Marriage to Foreign Nationals(a bad mix)

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.

Domicile

• The jurisdictional basis of divorce is domicile.• Three types of domicile:– Domicile by origin– Domicile by operation of law– Domicile by choice

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 domicile

Importance of Domicile

• Servicemembers experience involuntary mobility

• The Servicemembers Civil Relief Act (SCRA) allows Servicemembers to retain their domiciles for tax and voting purposes

• Servicemembers are permitted to change domicile during service

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 state– Registered to vote in that state

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 place

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 domicile

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 requirement

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 privileges– TRICARE and other health care benefits

Servicemembers Civil Relief Act

• Provides for the temporary suspension of judicial and administrative proceedings that might adversely affect the Servicemembers during their military service

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 proceedings– The ability to prosecute or defend must be

materially affected

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 appear

• Statement from Servicmember’s commanding officer that Servicemember’s current military duty prevents his/her appearance

• The stay is not automatic of the time of the statement

Good Faith Requirement

• Servicemember must demonstrate good faith and due diligence in his/her efforts to obtain military leave to appear in court

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 voidable

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.

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

care

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 remarry

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.

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.

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 year

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 applied

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 service

» Servicemember receives a 3.5% increase per year for additional years up to 30 credible years

» COLA 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 retirees

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 pension

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 intended

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)

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 share

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) taxes

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).

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)

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 divorce

Custody/Timesharing and the SCRA• Military custodian is entitled to a stay of

proceedings when absence from hearings is due to military service

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 sufficient

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 children

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.

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.

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.

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)

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 parent

Questions?