TABLE OF CONTENTS
I How to identify a military client.
II The Typical Divorce Custody Matter
III Servicemember Civil Relief Act (SCRA)
IV Service of Process
V Custody Issues
VI Calculating Child Support
VII Support Orders
VIII Pension and Retirement Benefits
IX. Thrift Savings Plans (TSP)
X USERRA and Employer Support of the Guard and Reserves (ESGR)
APPENDIXES
FAMILY MILITARY LAW
PETER B. WELCH
CRAWFORD SULLIVAN READ & ROEMERMAN
1800 1st Avenue NE
200 Wells Fargo Building
Cedar Rapids, IA 52402
(319) 364-0171
I How to Identify a Military Client.
A. Possible clients.
1. Military Member - He/she is either an active duty member of the Army, Navy, Air Force, Marine Corps, Coast Guard, NOAA (National Oceanic and Atmospheric Administration) or USPHS (United States Public Health Service).
2. Military Member as a Reserve component of one of the above services or as a National Guard Army or National Guard Air Force component. The difference with the National Guard components is that they are largely Reserve Units with a smaller group of full time active duty personal that report up through a chain of command to each states Governor. These formerly known Guard/Reservists as "Weekend Warriors" are now going to be activated on a much more robust routine approximating one year of continuous active duty within a four or five year time frame. This is the current policy of the Department of Defense, and as it goes forward in the longer term, most Iowa family practitioners will see the long term effects of this active duty deployment rotation creating a dramatic increase in pressures and tensions in a Reservist/National Guard family.
3. Military spouse of a person in one of the categories listed in (1) and (2)
4. Military Dependent: A minor under the age of 18 or college age student that has been issued a dependents identification card and is enrolled in the DEERS System (Dependent Enrollment Eligibility Reporting System).
5. Whether your client is the military member, spouse, or dependent, each of them should have a Department of Defense identification card which identifies their status and entitlement to benefits. Asking the potential client to show you their ID card will ensure that you are dealing in this area.
II The Typical Divorce/Custody Matter
A. First of all there is no typical or usual divorce proceeding
1. The initial issue is going to be one of jurisdiction. If your client is the military member either here in CONUS (Continental United States) or overseas, the service member can avail themselves of the Iowa District Courts if they were an Iowa resident before joining the military and going on active duty. Even if a member has been on active duty for ten years and hasn't been back in Iowa, the member can file the legal action in an Iowa District Court if Iowa remains the home of record of the servicemember when they went on active duty. Merely residing on a base in another state or country does not change residency.
2. If your client is the spouse or minor child then you have to obtain jurisdiction over the military parent in a proper manner.
3. The Soldiers and Sailors Civil Relief Act (SSCRA) is no longer applicable. Originally enacted in 1940, it was updated in 1991.
4. The replacement for the SSCRA is the Servicemember Civil Relief Act (SCRA) which was signed on December 19, 2003.
III Servicemember Civil Relief Act
A. The SCRA (Servicemember Civil Relief Act) was enacted to replace the former Soldiers and Sailors Act which was previously enacted to protect the rights of deployed or about to be deployed service members.
B. The SCRA (Servicemember Civil Relief Act) normally would prevent service upon a member overseas to start a custody/divorce/paternity legal matter and force its delay until the service member returns to CONUS (Continental United States) and can focus their efforts on the legal action. The operation of the SCRA (Servicemember Civil Relief Act) is to create a Stay of the Proceedings under SCRA (Servicemember Civil Relief Act), 50 U.S.C. App § 522.
1. But the SCRA (Servicemember Civil Relief Act) can be vulnerable in some circumstances, compare to In re: Marriage of Grantham, 698 N.W.2d 140 where an Iowa Reservist raised the SCRA as a defense to a modification to change physical custody to the non physical custody civilian Parent. The factual situation of the case was a primary physical custodian parent of the minor child was being mobilized to participate in the GWOT (Global War on Terror). The primary physical care parent put in place a military "Family Care Plan" whereby the deploying physical care parent (the father) attempted to transfer the physical custody and care of the minor child to the paternal grandparent of the minor child. The non-physical care parent sued for custody of the child, and the deployed soldier raised the SCRA as a defensive shield. The Iowa Supreme Court "Pierced the Veil" and allowed the non custodial parent to have the issue presented to District Court and regained the physical care of the child while the servicemember was deployed. Upon return from active duty the servicemember had to return to District Court to regain primary physical custody.
2. In an attempt to correct that, Iowa is considering legislation which allows a physical custodian parent that gets deployed to automatically upon return from active duty to Iowa resume the status of physical care parent without having to return to District Court to regain primary physical custody. This legislation has been drafted by State Senator Warnstadt from Sioux City who is the Vice Chairman of the Veteran Affairs Committee.
3. The SCRA (Servicemember Civil Relief Act) also allows servicemembers to obtain an interest rate ceiling cap of six percent on any existing loans both including home mortgage and personal loans.
4. The SCRA (Servicemember Civil Relief Act) also allows servicemembers to terminate leases that were executed previously for things such as a dwelling, professional, business or agricultural purposes.
5. The SCRA (Servicemember Civil Relief Act) in some cases will also prevent foreclosure actions against the servicemembers in certain cases.
6. On September 19, 2008 I received an e-mail from Attorney Mark Sullivan in North Carolina about a Congressional Bill that was introduced by Representative Mike Turner from Ohio, which is a state that lacks the name "return physical custody" law to the servicemember when they return from active duty as Iowa potentially has in the drafted Senator Warnstadt bill. This legislation is (at the time of submitting this outline) attached to the National Defense Authorization Act and would be to amend the SCRA which in effect would make it a Federal Custody Act. The proposed legislation would have three primary effects.
a. It would prevent a court from modifying an existing order or issuing a new custody order which changes a custody arrangement that existed on date of deployment of a servicemember, absence clear and convincing evidence that it is in childs best interest.
b. It would require reinstatement of previous custody arrangement upon return of the deployed servicemember.
c. It would bar courts from considering the servicemembers absence during deployment in determining best interest of the child. This bill if passed would create federal court jurisdiction in child custody cases. A disgruntled litigant in state court could then decide to "make a federal case out of it" by asking that it be removed to Federal Courts. Imagine the delays in having the Federal Courts involved in what has traditionally been an area that the State Courts had jurisdiction. Hopefully by the time of actually giving this presentation the issue will be resolved but like most legislation, the military family practitioner needs to be wary of any Federal intrusion into this area.
IV Service of Process
If your client is the servicemember then you don't have the myriad of issues regarding service of process that you instead have if your client is the Iowa spouse or minor that "is left behind". In these cases with the service member being on the opposite side you'll be presented with two different levels of challenge.
A. The CONUS (Continental United States) or stateside case. Service on a stateside service member can be like any other civilian manner with the possible exception of a service member that remains on a military installation which is a federal reservation and access to a civilian process server may not be granted.
B. The Overseas Case. This is the tough one, the one that the SCRA (Servicemember Civil Relief Act) is intended to stay. The family practitioner could send a set of the filed papers directly to the servicemember with an acceptance of service form, or like many practitioner, try sending the papers to and through the Commanding Officer of the unit that the servicemember is serving in. The Commanding Officer will likely pass along the word to the servicemember about what was received but expect that it will be the servicemembers call on whether to respond.
C. Stays and Dealing with Stays. While the SCRA (Servicemember Civil Relief Act) is intended to protect the legal right of the deployed servicemembers it can also create some very real problems in a dissolution ranging from just plain time delays in all aspects of conducting the legal operation. There can be delays in obtaining support or determining custody and visitation problems. Author Mark Sullivan suggests that one of the very best ways to challenge the application of a stay is to inquire as to the "military necessity" of the failure of the servicemembers to be present or prevent a hearing. In most cases a deployed combat soldier could not be expected to be actively involved in presenting an effective presentation of their legal case.
V Custody Issues
A. Most of the custody issues arise from the physical care parent being actively deployed for either a rotational duty in a particular area or conflict. This is the most common use of the Iowa Guard Units in that only the military members of the units are the one that are either going overseas or being mobilized to fill in some specific military need in another part of the country. These activations can be for a couple of months and last up to a couple of years. The spouse and dependents are not subject to the orders that send the servicemembers elsewhere and generally stay put.
B. A temporary deployment of a physical care parent that cannot be accompanied by a dependent, or the Permanent change of station (PCS) to a foreign country base where dependents are eligible can create a conflict or need for modification. In the case of a PCS (Permanent Change of Station) the usual things apply such as the best interests of the child, the nature amount and scope of the servicemembers job overseas and how much parenting will occur. Larger bases have housing options available with full medical and dental facilities along with Department of Defense schooling options through graduation from High School. One note of local Iowa interest here is that I was once stationed at the United States Naval Base in Yokosuka Japan, near Tokyo. The Department of Defense School System (DODSS) built a high school for the dependents that were there as part of providing educational opportunities for servicemembers deployed families. When it came time to pick a name for the high school all of the usual Presidential names came up. One enterprising young student conducted some research and came up with the name of Nile Kinnick. In addition to being a football star at the University of Iowa before WWII and winning the Heisman Trophy, Kinnick was enrolled at Iowa in the Navy as an Officer in the pre-Flight Program. Kinnick went missing at sea in a flight off of the aircraft carrier. The story spread through the student body like wild fire and was the runaway winner in the naming contest and Kinnick High School still functions to this day on the Yokosuka Naval base.
VI Calculating Child Support
A. Many years ago the military would force junior personnel to have an allotment that was directly payable to the spouse and dependents that were left behind. Now those mandatory allotments no longer exist but each Service has in place some regulation or standing order that addresses the issue of support for dependents left behind.
B. One of the hardest things for the Iowa family practitioner is to figure out the actual earnings of a Military Servicemembers. DO NOT BE FOOLED INTO USING THE SERVICEMEMBER'S W-2 TAXABLE INCOME. There are other non taxable benefits that should be included.
C. If you represent the spouse and only use the taxable income figure from the 1040 tax return you will be short changing your client. You should check the miscellaneous box on the W-2 form for other sources of non-taxable income that could be included in the child support calculations such as:
- BAQ / Bachelors Allowance for Quarters.
- FHA / VHA / BAH Family Housing Allowance.
- OHA Overseas Housing Allowance.
- BAS An Allowance for Subsistence.
- COMRATS or RATS - An allowance for an enlisted to compensate for meals that would otherwise be provided by having a military mess available.
- BAS - An allowance for an officers subsistence.
- SEP Pay - This is pay for servicemembers that are based overseas and/or deployed away from their family.
- Hazardous Duty Pay - this is pay for forward deployed troops that are considered in a hostile military environment and thus qualifying for extra pay.
- Special Qualification Pay - This is extra pay based upon Warfare Specialties such as Aviation, Submarine, Nuclear, Medical, Explosives Ordinance Disposal, Sea duty or any other number of Warfare or skill Specialties