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- Sarah, a partner and attorney at New Direction Family Law, interviewed Ashley Oldham, another partner, and attorney at the same firm, about military divorces.
- Military divorces have unique challenges, such as deployments, custody during deployment, and division of military pensions and benefits.
- There are three bases for jurisdiction under federal law regarding military pensions: consent, domicile, and residency for reasons other than military assignments.
- To benefit from certain accounts, no set length for marriage is required. Still, if the marriage overlaps with military service for ten years, the spouse can receive direct payments from the Defense Finance and Accounting Service.
- It is crucial to pick an attorney who knows enough about military divorce to understand what they do not know and can outsource to others.
- In a military divorce, all military entitlements count for child support, not just taxable income.
- The frozen benefit rule, which affects how much of a pension a former spouse is entitled to, has changed with the National Defense Authorization Act and may be worth less than expected due to disability benefits.
- Survivor benefits are unitary benefits, meaning they go to one person, but the pension can be divided among multiple spouses.
- Military attorneys are available for legal assistance, but they may not be licensed in the state and may not be knowledgeable about family law.
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What is Ex-it Strategy?
Your no bullsh$t guide to divorce with experienced attorneys from New Direction Family Law and guests and professionals who have been there. Unfiltered discussions to help you move from victim to victorious and from bitter to better.
[00:00:00] Sarah J. Hink: Hello. I'm Sarah.
[00:00:20] One of the partners and attorneys, a new direction, family law. Elizabeth is back at the office being an attorney. So good for her. Today, I'll be speaking with Ashley Oldham. She is another partner and attorney at family that family law.
[00:00:33] Ashley L. Oldham: Yes.
[00:00:34] Sarah J. Hink: The world of family law, new direction. Hey, Ashley.
[00:00:37] Ashley L. Oldham: Hi.
[00:00:38] Joe Woolworth: Let's be here.
[00:00:39] Sarah J. Hink: We here on St. Patrick's day recording. We all got little Guinness. So salon Shea to everyone out there. Okay.
[00:00:45] And today we'll be talking about.
[00:00:47] military divorces
[00:00:49] some, little interesting tidbits that you might.
[00:00:51] Have questions about being answered today that.
[00:00:53] sets them apart from a normal divorce.
[00:00:56] Ashley L. Oldham: Yeah. sure, absolutely. I'm happy to talk about military divorce.
[00:00:59] Sarah J. Hink: So if I'm married and,
[00:01:01] My
[00:01:02] spouse is in the military.
[00:01:03] What different obstacles?
[00:01:05] am I
[00:01:05] going to face as a spouse going through a separation or,
[00:01:08] What other things
[00:01:09] should I think
[00:01:09] about? That's
[00:01:10] different than a normal
[00:01:11] marriage.
[00:01:11] Ashley L. Oldham: In some ways.
[00:01:12] Military.
[00:01:13] divorce is not unlike any other divorce?
[00:01:15] You're going to have Custody.
[00:01:16] orders, child support issues. Support.
[00:01:19] Property.
[00:01:20] But with each.
[00:01:20] with, at each subset there? There's some unique things about
[00:01:24] military divorces. Like.
[00:01:26] Deployments for custody, for example.
[00:01:28] What happens, when a parent deploys. Or for child support. What happens if the surface. Uppers overseas, or if they're not paying support or we can't get into a court hearing, what can I do then?
[00:01:38] And then
[00:01:38] of course with
[00:01:38] property division,
[00:01:39] what types
[00:01:40] of property are we talking about?
[00:01:42] Pensions,
[00:01:43] thrift savings plans.
[00:01:44] Those are names
[00:01:45] that
[00:01:46] aren't often.
[00:01:47] in regular divorces.
[00:01:49] They don't have pensions these days in many jobs,
[00:01:51] Sarah J. Hink: Yeah, that's true.
[00:01:52] Those days, those good days are
[00:01:53] Over, none of us are going to have pensions.
[00:01:55] and our generation at least, but so starting out doesn't matter where we file for divorce. So if me and my spouse move around a lot, because he's in the military. And we just got to a new state. We've only been here like six months, but we were in another state for a while. Then we got married in a totally different state. Where did we get divorced? Where did we start the process?
[00:02:14] Ashley L. Oldham: The same rules on
[00:02:15] subject matter jurisdiction, personal
[00:02:17] jurisdiction, are still gonna apply to military divorce, just like the other, but there is a unique twist when it comes to military divorce.
[00:02:23] and pinching.
[00:02:24] Sarah J. Hink: Okay.
[00:02:25] Ashley L. Oldham: Federal law actually says that you have to have specific jurisdiction over the actual pension. In order to divide it.
[00:02:33] And so there's three ways under federal law.
[00:02:35] that you can have jurisdiction over a pension, but it can create issues if you don't, because you can do all your other divorce stuff in one state, your custody, your spouse support everything else in the service number can say.
[00:02:45] Oh, I'm not domiciled in the state. You can't divide my pension here which can create hiccups, as you can
[00:02:51] Sarah J. Hink: Where do we divide that pension? He lives where the spousal is at the time.
[00:02:55] Ashley L. Oldham: but there are three bases for jurisdiction under federal law.
[00:02:59] One is consent. It's going to be.
[00:03:00] expensive for the Cypress number to try to contest. Her jurisdiction. So you're more than likely going to get.
[00:03:07] Everybody's consent to divide it in the state. So that's the most likely way to get around it. But
[00:03:12] The other area, if there's not consent as domiciles.
[00:03:15] So you look at where The service member is domiciled.
[00:03:17] Which this is not often as easy as just where they have their driver's license or where they're currently living. You got to look at several factors to figure out domicile. And then the third is even trickier. It's.
[00:03:27] Where
[00:03:27] the service member is residing for reasons other than military assignments.
[00:03:32] Sarah J. Hink: Oh,
[00:03:33] Ashley L. Oldham: Yeah. We could go out and audit all these clean
[00:03:36] Jennifer Bordeaux: What are those other.
[00:03:37] Sarah J. Hink: reasons?
[00:03:39] Ashley L. Oldham: Well, a summer solver Could be stationed for example.
[00:03:41] in South Carolina, but living in across the state lines because they have elderly parents they're taking care of or something like that.
[00:03:49] As a UN the.
[00:03:50] only example I've rarely seen.
[00:03:51] Sarah J. Hink: It'll catch all there,
[00:03:52] Ashley L. Oldham: but yeah, there is there are three reasons and that's one of them.
[00:03:56] Sarah J. Hink: Yeah. So a lot of times
[00:03:57] people come to me and
[00:03:58] there's a 401k, but they've only been married a couple of years and I tell them,
[00:04:01] okay, the marital estate. Is it pretty small then if you only been married for two years as the worst dividing.
[00:04:06] But when there's military divorces, there's actually like there's a certain length of time. You need to be married, correct. To. Benefit from certain. Accounts from the other spouse or is that incorrect?
[00:04:16] Ashley L. Oldham: That is a common falsity.
[00:04:18] Sarah J. Hink: Oh, look
[00:04:19] Ashley L. Oldham: it Ruber what if though, especially with regard to the pinch, it.
[00:04:21] We
[00:04:22] hear day in and day out that you gotta be married 10 years,
[00:04:25] Sarah J. Hink: 10 years. Yeah.
[00:04:26] Ashley L. Oldham: of the budget, which is not true. But you'd be surprised how many people think that you can be married.
[00:04:31] Five days.
[00:04:32] 10 days and get them a portion of the pitch. And Of course, it's going to be a very small.
[00:04:35] portion,
[00:04:36] Sarah J. Hink: one at that one.
[00:04:37] Ashley L. Oldham: But the 10-year role is as to whether you can get direct payments from the payment center, which is known as de Fass.
[00:04:44] If you've been married 10 years overlapping, 10 years.
[00:04:47] of military service, you can get direct payments from DFS.
[00:04:50] Which is what you really want.
[00:04:52] because it's going to make the enforcement so much easier. Otherwise, you risk that spouse, absconding and tried to chase down
[00:04:58] those pension payments for the rest of your life.
[00:05:00] Sarah J. Hink: And what other benefits are there to.
[00:05:02] Military pension. So you might be able to get.
[00:05:04] Ashley L. Oldham: That is one of the most important things in the military divorces, knowing what are we talking about here What are the assets we're talking about here? And we've touched on the pension. That's one of the more unique.
[00:05:13] partners becoming more unique. Is the fact that there's going to be a pension, which is not, of course, a lump sum of money sitting here.
[00:05:19] but it
[00:05:19] is a
[00:05:20] stream of income for the rest of the service member's life.
[00:05:23] So the pension you want to think about.
[00:05:25] you want to think about survivor benefits? Because, okay. As I just said, the pension is
[00:05:29] going to continue for the
[00:05:30] rest of the service member's life,
[00:05:31] but the pension
[00:05:32] stops when the service member dies.
[00:05:33] and last, the former spouse has been granted the survivor benefit plan. That SBP. So the pension, the SVP, you also want to think about the TSP. The military loves acronyms.
[00:05:44] The Thrift savings plan, which as you said, it's very much like a 401k, so there's the three major assets. We want to talk about what we're doing A military.
[00:05:52] divorce.
[00:05:53] Sarah J. Hink: Okay.
[00:05:53] And so if I'm in the military and I'm thinking of separation, does the military give me an attorney?
[00:05:59] Am I Entitled to an attorney? through the military service.
[00:06:02] Ashley L. Oldham: You are entitled to legal assistance. Which is usually found through the legal assistance office or JAG.
[00:06:09] But often times those
[00:06:10] Attorneys might not be licensed in your state.
[00:06:12] And they might be fresh out of law school and have just learned a little bit on a whole bunch of different areas of law and not, particularly. Knowledgeable on family law. So while that's a good place to get started, it's probably not the best place to get all of your advice.
[00:06:27] And they can't represent
[00:06:28] you in court. So
[00:06:29] Sarah J. Hink: That's similar to a lot of corporations. These days have some kind of attorneys and like legal services they offer through your employment with the corporation. And oftentimes they're the same way. Not do family law. Maybe negotiate a separation agreement clearly. No.
[00:06:44] hardly anything
[00:06:44] about family law.
[00:06:45] Oh yeah.
[00:06:46] some of the big corporations here.
[00:06:47] We have SAS. Encounter that there. So you'll always be weary and maybe get an opinion from a family law attorney that just practices, family law.
[00:06:56] Ashley L. Oldham: And, we were talking about before we came here, like tips and tricks and things that we would recommend with military divorce. I would say that's number one is picking the right attorney.
[00:07:04] Because you want to eat and you don't necessarily need an attorney who is fully knowledgeable on military divorce. There's some of those around here, but.
[00:07:10] they're few and Far between.
[00:07:11] but you want an attorney who knows enough to know what they don't know.
[00:07:14] You could get an attorney he's knowledgeable on divorce or on military divorce, but or get, regular divorce attorney, but who knows where they need to outsource.
[00:07:22] something like drafting the paperwork or consulting on what benefits are divisible and what might not be.
[00:07:27] Sarah J. Hink: There's a lot of literature Out there on military divorce and.
[00:07:30] If someone's already read it.
[00:07:31] that's great. Probably choose them. But at least the other person will hopefully know that they need to go read it. If they need to answer some questions. The answers to already.
[00:07:39] And another scenario. So if I'm in the military, I know I'm going to be deployed.
[00:07:42] I'm negotiating custody. While I'm deployed. I want my son to go stay with my mother. So the grandma. Is that something that we can negotiate or is that something a court order? Always, if I'm deployed, is that an option?
[00:07:55] Ashley L. Oldham: It starts only something that you can negotiate.
[00:07:56] You can always say that in your consent order. And if you have put that in your order, or if a judge decided that it's in your order, that is going to control.
[00:08:03] When you deploy. But if there is nothing in your order,
[00:08:06] North Carolina has what is known as the UDP CVA.
[00:08:10] The uniform deployed parents custody and visitation act.
[00:08:14] Which actually allows a service member. If they follow certain requirements to delegate their custodial time to someone else during during their deployment.
[00:08:23] let's say someone, The child has a close and Substantial relationship with but often in these cases can be a step parent.
[00:08:29] which is a. Dusty issue.
[00:08:32] Sarah J. Hink: mix, the other side, a little mad.
[00:08:34] Yeah.
[00:08:34] Which
[00:08:34] is understandable.
[00:08:35] Okay.
[00:08:36] If dad's not here to take care of.
[00:08:38] our child, the child should be with me.
[00:08:40] I'm mom. Shouldn't be with step-mom. Especially if they just got married. The happens pretty quickly sometimes in these scenarios.
[00:08:46] Ashley L. Oldham: does. Yeah. I could understand that. Yeah.
[00:08:48] Sarah J. Hink: Yeah. So speaking of children and there might be child support, a lot of times families, they receive. Income from the military for, housing payments, other special.
[00:08:58] Perks of being in the military and income flows, what counts towards child support? And the, in a scenario with a military spouse, is there anything to consider other than just regularly occurring income from a
[00:09:08] paycheck?
[00:09:09] Ashley L. Oldham: Sure. And the short answer is everything. So a lot of these benefits that the military. Service members get are not taxable per se, which is a reason why you don't want to just go off someone's tax return if they're in the military, because that's not going to show a good portion of their income.
[00:09:23] No just show their taxable income, but there are other entitlements like their BH basic allowance for housing, or they, their BAS basic allowance for subsistence, or if they get any other special pay, like flip pay foreign language pay or jump pay for.
[00:09:38] Parachuting, that kind of thing.
[00:09:39] That's not calling to be.
[00:09:41] on on their tax return, but it will be on their pay stub. They'll leave an earning statement and that will count for child support.
[00:09:47] Sarah J. Hink: Okay. Good. So now I didn't know, there was jump pay out there.
[00:09:50] Ashley L. Oldham: There it
[00:09:51] Jennifer Bordeaux: Yeah. I
[00:09:51] used to get data guy in the military and he had to jump like.
[00:09:54] so many times in a certain timeframe in order to qualify.
[00:09:57] and get that jump pay every time.
[00:09:58] Sarah J. Hink: Sign me
[00:09:59] up.
[00:10:00] Ashley L. Oldham: I think it's only $150.
[00:10:03] Sarah J. Hink: This is your life.
[00:10:03] Jennifer Bordeaux: Every time.
[00:10:04] Ashley L. Oldham: That's a Big risk.
[00:10:05] for not a lot
[00:10:06] Sarah J. Hink: No. Thank
[00:10:07] you.
[00:10:08] Okay. So let's.
[00:10:10] What other. Things are different that you should look out for in the military? Divorce.
[00:10:14]
[00:10:14] Ashley L. Oldham: Choosing the right attorney, like we said, because the rules change often, and there's been several big changes here recently that you want to make sure your attorney is. Aware of one of which is known as the frozen benefit rule, which affects how much of the pension I, former spouse is entitled to.
[00:10:30] The federal law changed on that.
[00:10:32] With the national defense authorization act.
[00:10:34] of 2017, I think. So federal law changed how a pension can be divided and then North Carolina struck back and tried to equalize that.
[00:10:43] for former spouses. So the law has changed in that area. You want to make sure you know, that.
[00:10:47] But one of the bigger things that's been litigated more recently is realizing that pension might not be worth as much as you think it is. Because there are certain types of disability benefits, a surface member may become entitled to later on that essentially wipe out what portion of that pension is divisible with the former spouse. So the former spouse might think they're going to get, $2,000 a month for life, but then once this disability kicks in, they're getting something like $600 a month for life.
[00:11:14] And then what this new federal law changes most states have said.
[00:11:19] You can't go back and be made whole, so there's some planning that can go into that, that you want to make sure you talk about with your attorney.
[00:11:25] in terms of perhaps doing a unequal distribution of assets or planning for alimony that could possibly be modified later on. It's definitely a discussion you need to have.
[00:11:34] Sarah J. Hink: Yeah,
[00:11:34] for sure. Another question. So if I'm the second spouse for a military member and we're getting a separation divorce, and I know that his first wife already got a cut of the pension and survivor benefits. Now what's left for a second spouse. Can you get survivor benefits after if you're the second spouse, if it's already been.
[00:11:52] Awarded per se and another court order for a first spouse.
[00:11:55] Ashley L. Oldham: not survivor benefits. Those are
[00:11:57] unit, a
[00:11:57] unitary benefit. They go to one person. Although I guess.
[00:12:00] The airy, maybe if
[00:12:01] that first spouse passed away.
[00:12:03] They
[00:12:03] would then become eligible.
[00:12:04] But generally, no, it's a unitary benefit, but with the pension, it can be divided among multiple spouses. I do think there's a federal limit that you can't take more than 50%. But
[00:12:14] Sarah J. Hink: how many spouses does.
[00:12:15] that allow
[00:12:16] Ashley L. Oldham: the most
[00:12:17] I've ever seen this too. But I suppose in theory, as long as you didn't go over 50%, you could have more.
[00:12:22] Sarah J. Hink: Yeah. Okay. Good to know. And healthcare. So a lot of members are.
[00:13:15] Are entitled to try care their spouses. Have it.
[00:13:17] And if the, you go through a separation, how long can you stay on the Tri-Care? And what about your children?
[00:13:22] Ashley L. Oldham: So generally tri care is going to terminate at midnight on the day, following your divorce, unless you fall into certain categories. And one of those is known as the 20, 20, 20 spouse. So if you've been married for 20 years, the service member was in the military for 20 years.
[00:13:38] And those two sets of 20 years overlapped for 20 years. You're known as a 20, 20, 20 spouse. And you're going to get healthcare for life.
[00:13:45] There's a 20, 20 15 spouse, which has those same first three requirements. 20 years in the Military 20 years of marriage, but only 15 years of overlap. You can get a year of continued healthcare
[00:13:55] Sarah J. Hink: A year after
[00:13:56] Ashley L. Oldham: Here I debt
[00:13:57] Sarah J. Hink: 15 years.
[00:13:58] It's still a long time.
[00:13:59] Ashley L. Oldham: And it requires 20 years of marriage.
[00:14:01] It's just the
[00:14:02] Sarah J. Hink: Just stick out another five years to get health care for life.
[00:14:04] Ashley L. Oldham: I know.
[00:14:05] But sometimes it's our first member of retires earlier.
[00:14:07] And that's what that's off the. The time. And Anne, when you're counting up 20 years, don't just go based on what a pay statement shows or what you think you need to actually contact deers, the defense.
[00:14:18] An eligibility enrollment.
[00:14:19] register or surveys or something like that. Dear.
[00:14:22] D E R S
[00:14:23] And make sure that you talk to them and the former
[00:14:25] spouse determination program to get what
[00:14:27] they think. is the.
[00:14:29] Sarah J. Hink: And what I've learned, the most important thing is just get all the records you can coordinate with them. And sometimes it's difficult to get that information, especially if you're not the military member.
[00:14:38] It's a Piney. Subpoenaing this information. Oh, yeah.
[00:14:42] Good luck and possible. It's not, I'm sure it's not impossible.
[00:14:45] Ashley L. Oldham: Yeah. If you want to get
[00:14:46] Sarah J. Hink: my
[00:14:46] Ashley L. Oldham: federal law,
[00:14:47] Sarah J. Hink: good, but.
[00:14:49] Ashley L. Oldham: If you want to, you have many years to wait and the federal.
[00:14:52] Licensed to practice in federal court. You might have.
[00:14:54] the block.
[00:14:55] Sarah J. Hink: Yeah, Maybe.
[00:14:56] You Try your best to
[00:14:57] Get attorneys that are going to work together and avoid any issues like that, because you really do need that information, but I'm sure if you're in court, the judge will be like, make, give access to this information.
[00:15:07] Ashley L. Oldham: Yeah.
[00:15:08] And the North Carolina state bar has a standing committee on legal assistants for military personnel. So that is actually a great resource. Their website is
[00:15:16] N C L a M P N C nclamp.gov.
[00:15:20] And they have a tons of handouts and pamphlets for both.
[00:15:23] Attorneys who are practicing military divorce, but also for service members or spouses who are looking for attorneys. They actually have a whole section on how to find the military divorce attorney and what questions you might want to grill them on.
[00:15:35] I have to just see if they really know their military divorce. So absolutely recommend checking that out.
[00:15:39] Sarah J. Hink: Okay. That's great information for our listeners to have.
[00:15:43] Do you think of anything that you've encountered that.
[00:15:45] Listeners should know about.
[00:15:46] to look out for?
[00:15:47] Ashley L. Oldham: Oh, I think we've covered enough to make people's heads spin
[00:15:51] in this first.
[00:15:52] podcast. Maybe we'll do a more in depth for our advanced listening.
[00:15:57] some flight.
[00:15:58] Sarah J. Hink: Yeah.
[00:15:58] I'll be. for CLE
[00:15:59] credit for any attorneys out there.
[00:16:01] We'll Check back when that one. errors. Thanks so much Ashley for being here and joining us on the St. Patrick's day.
[00:16:07] Ashley L. Oldham: Awesome. Thank you.
[00:16:08]
[00:16:08]
[00:16:08] Sarah J. Hink: If you have the questions out there. And regardless of whether in North Carolina,
[00:16:12] or not, and need some information on military divorces, feel free to reach out to our office and you can have a consultation with Ashley and she loved to help you out. Ain't that some shit.