expert online series

AttorneyEdwin C. Schilling III, Esq.
on Divorce in the Military


Current Time: Thu Nov 6 09:53:14 EST 1997

MsgId: jcafe(1)
Date: Tue Nov 4 12:03:16 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Welcome to Expert Online.
MsgId: jcafe(2)
Date: Tue Nov 4 12:04:39 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Today's guest is Edwin C. Schilling III, Esq.,
a retired Air Force judge advocate in private practice in Denver, Colorado. He is one of the most renowned experts in the US on
the topic of Divorce in the Military, which, many know, is a specialized and complex field.




He advises lawyers, military members and spouses on military pay issues
arising in domestic relations matters, and is available to draft orders for the
division of military retired pay. He also has a similar practice as it relates to
federal civil service cases.

Mr. Schilling is a frequent speaker in divorce practice workshops and is a
member of the family law sections of the American and Colorado bar
associations, the Louisiana bar, and the Alaska bar. In 1990 he testified before
Congress on behalf of the ABA concerning proposed amendments to the
USFSPA.

MsgId: jcafe(3)
Date: Tue Nov 4 12:05:13 EST 1997
From: Edwin
At: 168.100.205.178

Good afternoon. Thank you for having me.
MsgId: jcafe(4)
Date: Tue Nov 4 12:05:36 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Mr. Schilling, are you ready to begin?
MsgId: jcafe(5)
Date: Tue Nov 4 12:06:31 EST 1997
From: Edwin
At: 168.100.205.178

Yes.
MsgId: jcafe(6)
Date: Tue Nov 4 12:06:53 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Fantastic. The first thing I'd like to do is set some context by asking you to explain why military divorce IS such a specialized area. How is divorce in the military different from divorce in the civilian world?
MsgId: jcafe(7)
Date: Tue Nov 4 12:08:53 EST 1997
From: Edwin
At: 168.100.205.178

Because there is a federal statute which limits power of the state courts to treat military retired pay as marital property. Some of the issues in divorce follow the normal state rules, and some are controlled by the federal statutes.
MsgId: jcafe(8)
Date: Tue Nov 4 12:10:23 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

In other words, you are saying that when in the military, divorce works in accordance with a unique set of military laws? We have laws for each of the 50 states, and a 51st set of laws for military families and personnel?
MsgId: jcafe(9)
Date: Tue Nov 4 12:13:09 EST 1997
From: Edwin
At: 168.100.205.178

No, the laws for the military apply in all of the 50 states. In other words, the military law is superimposed on top of the laws of each state.
MsgId: jcafe(10)
Date: Tue Nov 4 12:14:10 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Okay, I see, now we can get to some of the particulars. First, perhaps you can run through a typical military divorce, briefly. Set the scene, so to speak.
MsgId: jcafe(11)
Date: Tue Nov 4 12:15:26 EST 1997
From: Edwin
At: 168.100.205.178

Does the federal law require a state judge to divide military retired pay? No, it only permitted state courts to divide retired pay. Since the law was passed in 1983, we now have laws in each of the 50 states that say that military retired pay can be divided.
MsgId: jcafe(12)
Date: Tue Nov 4 12:17:54 EST 1997
From: Edwin
At: 168.100.205.178

As with nonmilitary divorce, one party files. The state where the case is filed is important because the federal statute says that a state court may not treat retired pay as property unless it has jurisdiction over the member by reason of 1) his residence, other than because of military assignment, in the jurisdiction of the court. 2) His domicile in the jurisdiction of the court or 3) his consent to the jurisdiction of the court.
MsgId: jcafe(13)
Date: Tue Nov 4 12:18:06 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

I see, then you're saying that each state invokes the military law on its own, on the state level.
MsgId: jcafe(14)
Date: Tue Nov 4 12:18:37 EST 1997
From: Edwin
At: 168.100.205.178

Yes.
MsgId: jcafe(15)
Date: Tue Nov 4 12:18:56 EST 1997
From: Edwin
At: 168.100.205.178

Within the limits of the federal law.
MsgId: jcafe(16)
Date: Tue Nov 4 12:19:49 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

If someone is divorcing in the military, what kind of lawyer should
the parties retain?
MsgId: jcafe(17)
Date: Tue Nov 4 12:21:10 EST 1997
From: Edwin
At: 168.100.205.178

What are some of those limits? 1) The jurisdiction requirements that we just talked about. 2) The state court only can order a division of "disposible retired pay," 3) the maximum that can be awarded is 50% of the retirement, and 4) direct pay to the former spouse can only be made by the pay center if there is an overlap of the marriage and career of at least 10 years.
MsgId: jcafe(18)
Date: Tue Nov 4 12:22:24 EST 1997
From: Edwin
At: 168.100.205.178

If they are not going to use an expert, then they must find a local lawyer who has a thorough understanding of the military divorce rules. If they are going to use an expert to assist, then their search is easier because then they need only look for the best divorce lawyer they can find.
MsgId: jcafe(19)
Date: Tue Nov 4 12:22:30 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

I see, so it really is a different ball game. Given that, should military personnel hire a special type of divorce attorney?
MsgId: jcafe(20)
Date: Tue Nov 4 12:24:07 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Please remember to type ... if you are not finished with your statement, and /ga if you are. Those can be the interviewers cues to continue or hold back, and we won't have all the overlap. Please just let me know you've seen this message.
MsgId: jcafe(21)
Date: Tue Nov 4 12:25:25 EST 1997
From: Edwin
At: 168.100.205.178

Go on with questions, please.
MsgId: jcafe(22)
Date: Tue Nov 4 12:25:56 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Which court grants the divorce?
MsgId: jcafe(23)
Date: Tue Nov 4 12:26:44 EST 1997
From: Edwin
At: 168.100.205.178

The one that has the proper kind of jurisdiction on a state level./ga
MsgId: jcafe(24)
Date: Tue Nov 4 12:27:33 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

How and under who's jurisdiction is child custody determined in a
military divorce?
MsgId: jcafe(25)
Date: Tue Nov 4 12:28:17 EST 1997
From: Edwin
At: 168.100.205.178

It's no different than in a non-military divorce./ga
MsgId: jcafe(26)
Date: Tue Nov 4 12:28:47 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

How about child support?
MsgId: jcafe(27)
Date: Tue Nov 4 12:29:11 EST 1997
From: Edwin
At: 168.100.205.178

Why don't we talk about the military benefits, since that is the main area of difference./ga
MsgId: jcafe(28)
Date: Tue Nov 4 12:30:02 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Great, let's go in that direction.
MsgId: jcafe(29)
Date: Tue Nov 4 12:30:47 EST 1997
From: Edwin
At: 168.100.205.178

Medical benefits of a former spouse are determined by the federal statute. For example, a former spouse can have full ID card and medical privileges only if there was an overlap of the marriage and career of at least 20 years...
MsgId: jcafe(30)
Date: Tue Nov 4 12:31:35 EST 1997
From: Edwin
At: 168.100.205.178

If there was between 15 and 20 years of overlap, the former spouse would have medical privileges for one year only./ga
MsgId: jcafe(31)
Date: Tue Nov 4 12:32:07 EST 1997
From: Edwin
At: 168.100.205.178

Let me talk about death benefits...
MsgId: jcafe(32)
Date: Tue Nov 4 12:32:26 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

What other military benefits are at issue here?
MsgId: jcafe(33)
Date: Tue Nov 4 12:33:03 EST 1997
From: Edwin
At: 168.100.205.178

If a military member does not live till retirement, there is no retirement to be awarded to the former spouse. Also, if the member dies after retirement, payments to the former spouse will stop...
MsgId: jcafe(34)
Date: Tue Nov 4 12:36:11 EST 1997
From: Edwin
At: 168.100.205.178

Knowing this, the question becomes what to do about it. There are two broad choices. 1) a commercial policy, such as life insurance, or 2) the Government Survivor Benefit Plan. The Government Survivor Benefit Plan is a government-sponsored plan whereby payments can be made to a named beneficiary if the military retiree dies. A former spouse can be named as a beneficiary. This area is very complicated because certain critical language must be included in the divorce decree, and certain administrative procedures must be followed to provide coverage for a former spouse./ga
MsgId: jcafe(35)
Date: Tue Nov 4 12:37:29 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

One side issue: Does payment to a current spouse cease after the military partner's death --or do payments stop only if there has been a divorce?
MsgId: jcafe(36)
Date: Tue Nov 4 12:40:03 EST 1997
From: Edwin
At: 168.100.205.178

A military member's retired pay stops at death. It makes no difference whether the person is married or divorced. The only way that a widow could receive payments after death of a member is if there was survivor-benefit coverage elected for that spouse./ga
MsgId: jcafe(37)
Date: Tue Nov 4 12:41:21 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

So in a sense it's not a divorce issue, and perhaps, those who have been divorced are better protected, since they've hired professional negotiators to protect their rights./ga
MsgId: jcafe(38)
Date: Tue Nov 4 12:43:09 EST 1997
From: Edwin
At: 168.100.205.178

Not necessarily. When a military member retires, if that person has a spouse, the member must choose full survivor coverage unless the spouse consents in writing to anything less./ga
MsgId: jcafe(39)
Date: Tue Nov 4 12:43:49 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Are there any other important benefits at issue that we should discuss here?/ga
MsgId: jcafe(40)
Date: Tue Nov 4 12:46:20 EST 1997
From: Edwin
At: 168.100.205.178

An important question is how are retirement payments to a former spouse taxed? Payments to the former spouse out of the member's retirement are taxed as income to the former spouse. The member only pays tax on the part of the retirement that the member receives./ga
MsgId: jcafe(41)
Date: Tue Nov 4 12:46:59 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Is that different than in civilian life?
MsgId: jcafe(42)
Date: Tue Nov 4 12:48:28 EST 1997
From: Edwin
At: 168.100.205.178

It depends on the type of retirement that is being divided in the divorce and how the non-employee chooses to receive payment./ga
MsgId: jcafe(43)
Date: Tue Nov 4 12:48:45 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Can the former spouse receive payments directly from the military pay
center?
MsgId: jcafe(44)
Date: Tue Nov 4 12:50:12 EST 1997
From: Edwin
At: 168.100.205.178

It depends on several factors. 1) If the payment the former spouse is to receive is retired pay as property, there must have been at least a 10-year overlap of the marriage and career...
MsgId: jcafe(45)
Date: Tue Nov 4 12:51:23 EST 1997
From: Edwin
At: 168.100.205.178

If the payment to the former spouse is for either child support or spousal support (alimony), then payments can be made from the pay center in any case./ga
MsgId: jcafe(46)
Date: Tue Nov 4 12:52:05 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Are there any other benefit issues we should be covering here? Any other specialized areas we've left out?
MsgId: jcafe(47)
Date: Tue Nov 4 12:54:28 EST 1997
From: Edwin
At: 168.100.205.178

Your visitors may also be interested to know that alimony and child support can be garnished from the pay of an active-duty military member. The garnishment is similar to that if the member was employed with some civilian company./ga
MsgId: jcafe(48)
Date: Tue Nov 4 12:56:27 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Is there any way to collect child support or alimony from a person who
is not yet retired?


MsgId: jcafe(49)
Date: Tue Nov 4 12:58:49 EST 1997
From: Edwin
At: 168.100.205.178

Sorry, it looks like the question came through after my answer.
MsgId: jcafe(50)
Date: Tue Nov 4 13:00:31 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58


I'd like to take a minute to discuss the politics of divorce in the military. What about the recent case involving a female pilot, in which an affair caused a divorce? It seems like this caused much more of an uproar than in civilian life.

MsgId: jcafe(51)
Date: Tue Nov 4 13:01:48 EST 1997
From: Edwin
At: 168.100.205.178

Adultery in the military is a crime and is treated far more seriously than adultery in civilian life because of the unique mission of the military./ga
MsgId: jcafe(52)
Date: Tue Nov 4 13:02:08 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58


I'd like to take a minute to discuss the politics of divorce in the military. What about the recent case involving a female pilot, in which an affair caused a divorce? It seems like this caused much more of an uproar than in civilian life.

MsgId: jcafe(53)
Date: Tue Nov 4 13:03:16 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Can you address that? Do you think this is a legitimate policy, or that it needs reform?
MsgId: jcafe(54)
Date: Tue Nov 4 13:04:38 EST 1997
From: Edwin
At: 168.100.205.178

I believe it is a legitimate policy as long as the military has the unique mission it does. If a person cannot comply with military standards in their day-to-day life, then they need to have the good judgement to leave the military and go find a civilian job./ga
MsgId: jcafe(55)
Date: Tue Nov 4 13:05:28 EST 1997
From: Divorce_Central_Moderator
At: 168.100.204.58

Thank you very much. We're out of time, but this is invaluable information that our users will tap for many months to come.
MsgId: jcafe(56)
Date: Tue Nov 4 13:05:58 EST 1997
From: Edwin
At: 168.100.205.178

Thank you for having me.



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