Charting a Course Through Military Divorce with Kristin Scully
Navigating the Complexities of Military Divorce
In this week's episode of How to Split a Toaster, Pete is joined by a special guest, Kristin Scully, the newest member of NLG Family Law Group. With Seth on vacation, Kristin steps in to share her expertise on the intricacies of military divorce. As a family law attorney with over ten years of experience, Kristin has developed a niche in handling military divorce cases, addressing issues such as pension division, parenting plans, and jurisdictional challenges.
Pete and Kristin dive deep into the unique aspects of military divorce, discussing how factors like frequent relocation, deployments, and military benefits can complicate the process. They explore the misconceptions surrounding military pension division, the importance of understanding the service member's income structure, and the creative strategies for crafting parenting plans that accommodate the demands of military life.
Some questions we answer in this episode:
How is military pension divided in a divorce?
What challenges do military families face when creating parenting plans?
Can GI Bill benefits be divided in a military divorce?
Key Takeaways:
Military pension division is based on the length of the marriage overlapping with years of service, not just the total duration of the marriage.
Parenting plans for military families should include provisions for long-distance and local schedules to minimize the need for constant modifications.
Jurisdiction can be a complex issue in military divorces, especially when one spouse is stationed overseas.
Plus, we tackle another listener question! A listener asks about the difference between a social investigator and a Guardian Ad Litem (GAL) in the context of divorce proceedings. Pete and Kristin clarify the distinct roles and responsibilities of these professionals, helping listeners understand when and why each may be appointed in a divorce case.
This episode is a must-listen for anyone navigating the complexities of a military divorce. With Kristin's extensive knowledge and experience, listeners will gain valuable insights into the unique challenges and considerations involved in these cases. Whether you're a service member, a spouse, or a legal professional, this episode will provide you with the information and strategies you need to approach a military divorce with confidence and clarity.
Links & Notes
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Pete Wright:
Welcome to How to Split a Toaster, a divorce podcast about saving your relationships from TruStory FM. I am Pete Wright, and I here without Seth, who is on vacation. We try not to let him leave the office as much as we possibly can, and yet he has managed to get away.
Today on the show divorce, it's never easy, but for military families, the process can be even more complex and emotionally charged. From navigating the division of military pensions and thrift savings plans to creating parenting plans that account for the unique demands of military life, there are countless factors to consider when a military marriage comes to an end. This week we dive into the world of military divorce with our own Kristin Scully, family attorney with NLG Family Law. Kristin, welcome to the Toaster.
Kristin Scully:
Thank you for having me, Pete.
Pete Wright:
Kristin, it is about time. You're still fairly new at the firm, and we're really, really glad to have you, and to introduce you to our audience. I think everybody's had a rotation in the hot seat when Seth goes on vacation, and it is in fact your turn. To start us off a little bit with your background, what led you down this path to have at least a specialty in military divorce?
Kristin Scully:
So I've been practicing family law for a little over 10 years now, and I started working with a firm in 2017 that primarily focused on military issues, military divorce, pension division, things like that. And I was there for over six years, and I learned a lot. It was really interesting to me, all of the jurisdictional issues, issues with the pension, the issues with parenting plans when you're dealing with people that move frequently, and I really grew to love it. And so that's kind of been my little niche over the past six years or so, and I hope to continue helping military families moving forward.
Pete Wright:
When you think about military divorce, when we think about military divorce, what are the... And I know we have sort of a grab bag of topics here, but writ large, what are the kinds of challenges that military families tend to face when going through a divorce?
Kristin Scully:
One of the biggest issues when there's children involved with a military divorce is, these families move so frequently. Generally you have a PCS or permanent change of station every three to four years. And so when the service member is having to move often, how do we construct a parenting plan that's going to work for that family where the former spouse, generally the mom is the one that's staying in one spot with the kids, and then the service member still needs to PCS every three or four years. And then you're also dealing with deployments. How do we handle time-sharing when a parent is deployed? That I think is the number one issue that people are concerned about when you're dealing with a military divorce is what happens with the kids.
Pete Wright:
Well, okay, so we're going to be talking about the kids for sure, I know that's part of our grab bag. Let's start with a little bit of money. Let's start with the military pension division. How does the division of the military pension work in a divorce?
Kristin Scully:
Sure, so the military pension, when you have a military family, the pension is generally going to be their biggest asset. So that is going to be the most important asset that we're dealing with as far as equitable distribution.
And in Florida, you start with the presumption that all marital assets and marital liabilities are split 50-50. So that would include the pension that's earned during the marriage. So we look at the date that the parties were married, we look at the date that the military member entered service, and then we look at the date that the petition for dissolution of marriage is filed, or whatever date that we're using to value the pension, which is typically the data filing.
And we try to come up with what percentage of that pension is marital. From there, once we have that marital portion, we're able to divide the pension. There's very specific language that we have to include in any sort of marital settlement agreement when our final judgment that, when we're dividing the pension. But that pension, a lot of service members think, "Oh, it's mine. I earned it. I am the one that was going through deployments," and things like that. But the Uniform Service Former Spouses Protection Act, which is the USFSPA, really recognizes the fact that these former spouses, they're a big part of our military too, and we need to protect what their entitled too as well.
Pete Wright:
That's fascinating. I imagine that comes as a surprise. What other misconceptions do families have when thinking about the complexities of determining the pension, how the pension is settled?
Kristin Scully:
So one of the big misconceptions that I see with regard to the military divorce or military pension is that the pension can't be divided if you weren't married for at least 10 years, and that's not the case. The military pension is a marital asset. It doesn't matter if you're married for 1 year, 10 years, 20 years, it's an asset that needs to be divided in divorce.
The ten-year piece of it is that DFAS, which is the organization through the military that pays the military members and rates the checks for the pension, they will not pay a former spouse directly for their share of the pension unless there's 10 years of marriage that overlap with 10 years of service. So that's where that ten-year piece comes in. But if you are married for less than 10 years, you're still entitled to the military pension.
Pete Wright:
So that brings up another question that feels more complicated than maybe I expected it to be. DFAS, who do they pay if it's under 10 years? Do they pay the service member and the service member is responsible for sending a check?
Kristin Scully:
So DFAS will pay the military member their entire portion of the pension, and then if it was a less than ten-year marriage, then the service member is responsible for paying the former spouse their share of the pension directly. So that comes with a whole host of problems, because the military members being taxed on the full amount, and how do we figure out what they should be paying versus what they might actually be paying? So it can get complicated.
Pete Wright:
Well, you just made it sound all complicated, and the only thing I'm thinking about is, what if they're deployed? How do they write checks every month when they're deployed?
Kristin Scully:
Well, so the military pension you are collecting once you're retired, right?
Pete Wright:
Oh, right, right, of course.
Kristin Scully:
So you're not going to be dealing unless you have somebody that is a civilian employee after they retire that may travel as part of their civilian job, but you're not going to be dealing with typical deployments and things like that.
So most of the time when you're dealing with direct payments, people will set up an allotment to ensure that the former spouse gets their share, but it can be difficult to calculate what they're entitled to if it's a less than ten-year marriage because you have COLA's each year, which is the cost of living adjustment that goes into effect yearly, and the former spouse is entitled to that COLA, and then obviously the taxes that are being paid by the service member. So when we're drafting these agreements, when you're dealing with a less than ten-year marriage, we need to try to account for all of those things.
Pete Wright:
So where I had gone in my head already was thinking about things like alimony and child support. Maybe we should do that, because my cart got in front of my horse. Is managing the complexities of dealing with financing the divorce during a deployment if the service member's still active.
Kristin Scully:
There's ways that, with alimony, we can have what's called an income deduction order put in place, so that the alimony is withheld directly from the service members pay. So it's paid by DFAS to the former spouse, so you don't have to worry about payments. The interesting piece with alimony though is if you have somebody that's paying alimony and then they retire and then they start collecting their pension, and the former spouse starts collecting their share of the pension, how does that affect alimony?
Because now former spouses receiving the pension, theoretically their need for alimony has gone down. So those are all things that we try to address on the front end to say, if we can, reach an agreement on these things to say maybe there's an automatic termination of alimony once the pension goes into effect. Or maybe we need to offset the alimony on a dollar for dollar basis by each dollar that the former spouse ends up receiving from the pension. Because otherwise, everyone's just back in court all the time,
Pete Wright:
All the time. I imagine you just have to be on top of it, sometimes years after the divorce was settled.
Kristin Scully:
Yeah.
Pete Wright:
That's crazy. All right, here's a new one that I had not heard of, the Thrift Savings Plan, the TSP. What is the Thrift Savings Plan, and why are we talking about it with a divorce?
Kristin Scully:
So a Thrift Savings Plan, you will see a Thrift Savings Plan in military cases it's called a Military Thrift Savings Plan. And then there's also a Civilian Thrift Savings Plan, which is something that people that are employed by the federal government can contribute to. So there are two different types of plans, but military members have the option of contributing to a Thrift Savings Plan for their retirement. It's very much like a 401k type of plan, a typical retirement plan.
But when you're contributing to a Thrift Savings Plan, that's a marital asset. And so that's something else that we need to address as part of the divorce, potentially. If they are contributing to the Thrift Savings Plan during the marriage, that's an asset that needs to be divided as well.
Pete Wright:
That's another thing I would not have been able to keep track of. So many details. The next question I think we're running into is calculating the service member's income. You would put that on your list of things that are important to think about. Isn't that just written down? Aren't there scales for that?
Kristin Scully:
So the service member's income is really interesting. And the great thing about dealing with service members is that their income is available to us online. So we can tell what a service member is making each year based on their years of service and their rank and service. So if we're having a hard time with a service member cooperating with providing their leave and earnings statements, which is their pay stubs, as long as we know when they entered the military and what ranks they are, we can figure out what their pay is.
So service members have usually three different types of pay, sometimes four, but it's generally their gross pay, which is just their regular pay, that's taxed just like regular income. And then they have a basic allowance for housing, which is tax-free housing allowance, and then they have a basic allowance for subsistence, which is basically an allowance for clothing, living expenses, that type of thing, and that's also tax-free.
And so when you're calculating things like child support, you have to be really careful and acknowledge what income is taxable for the service member and what isn't. Because a lot of that income is tax-free, so that frees up more money potentially that they have available for ability to pay alimony, and that also increases their net income when calculating child support. Sometimes you also have things like parachute pay, if they're deployed you'll have hazard duty pay, which is also tax-free. If they're living in another country, there'll be a cost of living for wherever, whatever area of the world they're living in, there's a cost of living allowance or adjustment. So there's a lot of things to be aware of when determining what the service member's income actually is.
Pete Wright:
Is there any accommodation for currency fluctuations?
Kristin Scully:
So they're all paid in US dollars even if they're stationed overseas, but yes, the cost of living adjustment that's on their paycheck. They'll get additional income each month depending on the value of the dollar wherever it is that they're living. So that amount generally fluctuates on a monthly basis.
Pete Wright:
Which I imagine also plays into the complexities of figuring out how to calculate this. Oh my goodness.
Kristin Scully:
Yes.
Pete Wright:
Okay. We started talking about kids earlier, now we're digging into parenting plans. How do you handle building a parenting plan when parents are on the road so much?
Kristin Scully:
So when I have a military family come to me and they're dealing with a divorce, I always try to build into a parenting plan a long distance schedule and a local schedule. And that's a great thing about when parties can work together and we can resolve things, we can be really creative in our parenting plans, and we can do things that the court can't do. You can't go to court with a military family and say, "Look, in three years he's retiring and he's going to move back to Tampa. So let's do a parenting plan that gives dad 50-50 timesharing when he comes back to Tampa, because we know that's going to happen in three years." The court can't do that. They can't prospectively make changes to the parenting plan. There's case law and things that say that there's no crystal ball and we can't look ahead to the future.
But when [inaudible 00:13:23] settle things and when we're in mediation and we're trying to resolve things for our family through settlement discussions and settlement communications, we can be really creative. And that's what I love about doing these military cases is really trying to work on a parenting plan that will work for this family long term, so they're not constantly having to go back to court to modify every time somebody moves.
So we can put things in a parenting plan that says, "Yes, we agree that this service member is going to have to move every two to three years, and we're not going to make this service member have to go file a petition for relocation every single time that they move." So we can waive those relocation requirements in the parenting plan. We can also, again, do that long distance schedule and that local schedule. So if the parents are living within 50 miles of each other, we'll follow one schedule, and maybe that's a 50-50 schedule. But if the parents are living more than 50 miles, but as long as they're in the continental United States, we'll follow this schedule. And then if one of the parents is outside the continental United States, we'll follow a different schedule. So we can be really creative in that regard.
Pete Wright:
You make it sound so easy, but I imagine there are people who might be listening to this who are saying, "I can't talk to my former spouse." So when you deal with a case that doesn't end in mediation and settlement, how do you end up trying to navigate around the crystal ball conundrum where you can't predict? I mean, is it just pretty much whoever's stationary gets the kid for a while?
Kristin Scully:
If you end up having to go to trial on a case where you have a military member, and let's say the parties are both... The military member's stationed at MacDill, and so right now we can do a 50-50 schedule, but once the final judgment's entered, maybe two years from now, we know that dad is going to PCS. There's nothing that the court can do about it at that point in time. So we're going to have a 50-50 schedule. And then once dad gets his orders to PCS or have that permanent change of station, then he's going to have to go back to court and file a petition for relocation and say, "I have these orders, I'm moving," and ask the court to enter a new parenting plan. So when parties can get along and can resolve some of these issues upfront so that they're not having to go back to court every single time there's a change, I think that is so beneficial for the family.
Pete Wright:
My head goes down the conflict area. I can imagine that a 50-50 split is great, and then one parent leaves, and the other parent is settled into 50-50, and now is frustrated that their life, they're going to have to adapt in a way... That sort of conflict. How do you help your clients navigate that level of conflict when the kids are at stake?
Kristin Scully:
Yeah. Well, I think that the really hard thing when you're dealing with relocation, let's say the service member files a petition for relocation and wants the kids to go with them to wherever they're going. I think that unfortunately the service member is going to have an uphill battle to try to get the court to say, "Yes, go ahead and take the kids with you." Because the kids have theoretically been in this, Tampa let's just say, for the last four years.
And so now the service member has to move. But now we're going to uproot the kids from the school that they've been in for the last three or four years, and we're going to go to this place for 2, 3, 4 years potentially, depending on what the orders are. But it's not a permanent move. They say it's a permanent [inaudible 00:17:02], but it's not. And so the court is always going to be concerned about best interest of the child, and stability for the child is going to be one of those things where if the child is in Tampa, acclimated doing well in school, the other parent is a good parent, the service member is going to have a hard time saying that the kid should move with them. And that can be unfortunately not fair to the service member. But when they retire, they always have the opportunity and the hope that they would come back to wherever the kids are.
Pete Wright:
What is the court's general perspective on these kinds of conflicts? We were talking to Seth, the refrain is the judge doesn't usually being, to step in as a parent. The judge wants you to deal with this on your own. When dealing with this sort of military conflict, same vibe? The judge wants you to solve this and doesn't like stepping in? How do they generally handle these things?
Kristin Scully:
Well, I think that the judges are always, it doesn't matter if you're a military family or not, I think the judge always wants the parties to try to resolve between them, because the parties are always going to know what's best for their kids, not someone in a black robe that is hearing a few hours of testimony from each party, and then has to make a decision about what's best for your children. I think you as parents know what's best for your children more than a stranger, right? That's just hearing evidence over a few hours, over a day or two. So the courts are always going to want you to resolve it. And I think that the benefit of the parties resolving it is just the flexibility, and the things that we can do that the court can't do, and trying to resolve some of the issues between the parties.
Pete Wright:
We've talked about military pension and Thrift Savings Plans. Let's talk about another benefit, GI Bill. Can GI bill benefits be divided in a military divorce?
Kristin Scully:
No, they cannot be divided in a military divorce. The GI bill is basically the property of the service member, and they can do what they want with it. So I have a lot of times where the former spouse will say they want the service member to allocate a portion of the GI Bill to them so that they can go back to school. Or they want it ordered that the service member will award the GI bill to the minor children, or minor child.
And if the service member will agree to that, great, we can put that in any sort of agreement. But it's not an asset that the court can divide or that the court can say that you have to name your kids as a beneficiary of the GI bill, or that you have to name your former spouse. But naming your former spouse as a beneficiary of the GI bill is one of those things that I think can be super helpful when negotiating alimony because if they're able to go back to school and start earning more money, that's going to be better for the service member in the long term when you're talking about them paying alimony for an extended period of time.
Pete Wright:
Totally. Totally. And you were specific to minor children. GI bill isn't transferable once the child is no longer a minor?
Kristin Scully:
The GI bill can be awarded to child of the service member. I was saying minor child, just because generally when we're dealing with the divorce and the GI bill, that's when the children are minors, and so-
Pete Wright:
We're talking about it, yeah.
Kristin Scully:
... of credits allocated to, if there's three children, they'll want a certain number of credits allocated between each child, or something like that.
Pete Wright:
Okay. Okay. What do you find couples going into divorce in the military generally miss? Common loopholes, gotchas, areas that they didn't see coming, corners around which they could not peek.
Kristin Scully:
So one of the things that I think some people forget to realize is the jurisdictional issues associated with a military divorce. Because people will call and say, "Well, I have Florida residency, I still have my Florida driver's license, but I'm stationed in Germany, and my kids are here in Germany with me." Well, great. Florida has jurisdiction to determine the financial issues. But if the kids have not resided in Florida for more than six months, or for the six months prior to the filing of the petition, the Florida court has no jurisdiction over the children, and the German court would have to adjudicate any children's issues.
So then you're dealing with a court in Germany dealing with some issues, and you're dealing with the Florida court dealing with some issues. And the really interesting thing is sometimes the, let's just using the German court as an example. But let's say the German court does adjudicate alimony and all of the financial issues and things like that. The German court cannot divide the military pension, so you're still going to have to come to Florida if that's where residency is, to divide the pension. So I've had cases where everything was done in Germany and then we just had to file something in Florida to divide the pension, which is super interesting.
Pete Wright:
Wow, okay. And jurisdiction to jurisdiction, I mean you use Germany, but in your experience dealing with international courts, what is the sort of legal cultural divide when you're thinking of, is there a better country to have to deal with this than others?
Kristin Scully:
I honestly don't know. The cases that I've had where the children's issues have been adjudicated in Germany or another foreign country, I honestly really didn't pay attention to what the parenting plan or the time-sharing arrangement or anything like that ended up being because I was just focused on what we were dealing in the Florida court.
But you can't forum shop the children's issues, right? So you only have jurisdiction where the children have presided for the last six months. So it's not that one jurisdiction could be better for you than the other as far as the children's issues, because that's not something that you can choose. You can't consent to subject matter jurisdiction over the children. So as far as the money stuff goes, maybe some of these other countries have different laws pertaining to alimony and things like that where it would be more beneficial to adjudicate alimony over there and just come to Florida for the pension. But it's definitely something that the service members should keep in mind.
Pete Wright:
Well, it seems like it. I especially think when you're talking about the children and family issues, I know that there are cultural norms, country to country that we may not anticipate recognizing completely you can't forum shop, as you put it. That's awesome. You can't shop that around, but at least be aware that these are things that you might not consider. That's fascinating to me.
Kristin Scully:
Yeah, sometimes I think people will wait to file for divorce because they don't want that foreign jurisdiction to adjudicate any of those issues, but they know that they're coming back to the United States in a few months or a year or something like that, so they'll wait to file anything until they're back in the United States.
Pete Wright:
Cases, obviously being what they are, we're not making a general proclamation here. I'm not asking you to make a proclamation, but is that something that you advise your clients to do in international cases?
Kristin Scully:
It's not something that I ever really take a position on, because I don't know what the law is in that country, so I would never tell them, "Wait until you come back to Florida to deal with the kids' issues." I think it really depends on the relationship between the parties and how things are going, right. If it's amicable and everyone's fine, then if you're fine with waiting, then we can file after you've been back in Florida for six months, and deal with the children's issues at that time. And then we can also deal with all of the other things. If you're fine with having things done in two separate courts, we can do that too.
Pete Wright:
Obviously we recognize that the time that it takes is obviously as long as it takes to deal with the divorce process and the separation, but also waiting six months after you return, and also waiting to get back in the first place, as we back into that schedule. But in your experience, do the foreign courts work at about the same pace? If you were to just say, I want to get divorced, and we'll deal with it in two separate jurisdictions.
Kristin Scully:
I've only seen a handful, and it seemed like, at least in the few that I've seen that, and they were just happened to be from Germany since we were using that as an example, it seemed like they took longer to adjudicate some of those issues. But-
Pete Wright:
Your mileage may vary.
Kristin Scully:
Yeah.
Pete Wright:
All right. I have a... This is the ceremonial transition to what we like to call the listener question part of our show.
Kristin Scully:
Okay.
Pete Wright:
Seth is not here, and you are the duly appointed representative of the listener question today. Are you ready?
Kristin Scully:
I'm ready.
Pete Wright:
I think you're going to hit this one out of the park.
Kristin Scully:
Okay.
Pete Wright:
The listener question is from Nononymous. Producer Andy likes to have fun with me, and sort of an Anchorman vibe, and that's what we're getting here. The question is thus, what is the difference between a social investigator and a GAL? I'm assuming that's guardian ad litem?
Kristin Scully:
Yes, very interesting question. A social investigator in Florida is appointed under Florida statute 6120, and basically a social investigator has to be a mental health professional, whereas a guardian ad litem does not have to be a mental health professional. A guardian ad litem could be an attorney, a guardian ad litem can be a mental health professional. A guardian ad litem could also be somebody that's just gone through training and is not an attorney or mental health professional.
A social investigation generally also includes psychological evaluations of the parents, whereas a guardian ad litem, if they want a psychological evaluation of one or both parents, they have to ask the court for it, and then somebody else has to be appointed by the court in order to conduct that evaluation. So with the social investigation we get done as part of it, which if there are mental health issues, I think you want a social investigation done.
And then the other big difference is that a social investigation is admitted into evidence without hearsay objections, and a guardian ad litem's report is not exempt from hearsay. So a lot of times you'll hear attorneys argue when a guardian ad litem is being appointed, well, I'm not going to waive hearsay. Well, if you don't waive hearsay in a guardian ad litem's report, the report is generally worthless, in my opinion. And I think most of the judges feel that way where they're like, I'm not even going to appoint a guardian if you're not going to waive hearsay.
So if you have a case where you want a parenting plan evaluation done, you want somebody telling the court what's in the best interest of this child, and the opposing side is saying, "well, I'm not going to waive hearsay. I'm not going to wear waive hearsay." Then your best bet is to ask for a social investigation because then you don't have to deal with those objections.
Pete Wright:
Okay, I need you to back up for the laypeople, meaning me. Waiving hearsay specifically means what?
Kristin Scully:
So hearsay is any statement that is outside of court. So basically, if you and I are having a conversation and you tell me something, and I put that in my report. I had a conversation with Pete on this day and he said, X, Y, or Z about mom or dad, or something that they did, or something that he witnessed, right? That's an out of court statement that is potentially being used for the truth of the matter asserted, so it's considered hearsay, and hearsay statements are not admissible in court. So most of what a guardian ad litem does and a social investigator does is they're interviewing collaterals, they're interviewing other people in the case. So they'll interview school counselors, teachers, therapists, coaches, babysitters. Anyone that's involved in with child is potentially going to be talked to by this person.
Pete Wright:
All of them out of court.
Kristin Scully:
Right. And when you're doing your report, you're saying, I spoke to so-and-so on such and such date. And so-and-so said this about mom, or dad, or the child. And so the whole report is just riddled with hearsay. And so it's really hard for a guardian to write a report that doesn't contain hearsay statements.
Pete Wright:
And that's what opposing counsel is saying. We're going to waive hearsay, meaning it can include hearsay statements.
Kristin Scully:
It can include hearsay, and we're going to admit the report with those hearsay statements, and the guardian can testify about the hearsay statements.
Pete Wright:
Okay. Important note, because it seems like everything in the law is just a little bit backwards from where I would expect it to go. I'm glad to understand that. So that is the difference between a social investigator and a guardian ad litem, and it's a significant one, it sounds like.
Kristin Scully:
Yeah, it's a significant one. I think that social investigations can be good in certain circumstances. I think some cases, if you don't have all of the mental health issues and things like that, then you're more than fine with a guardian ad litem being appointed to the case. You just need to make sure that there's a hearsay waiver in the order of appointment.
Pete Wright:
Hearsay waiver. You got it. Nononymous, thank you so much for writing in this question, and thank you Kristin for the great answer. Hit it out of the park. I told you, it was great. This has been great. Have we missed anything? Are there any major holes in our discussion that you feel like people absolutely need to know preparing for their military divorce, before I let you back to work?
Kristin Scully:
I think that the biggest thing with the military pension, another thing to keep in mind with that is the survivor benefit plan. That is something that secures the pension for the former spouse and the event of the service member's death. So if the service member were to pass away and you're relying on that pension, well, once they die, you don't receive that pension any longer unless you were the beneficiary of the survivor benefit plan, and that was elected at the time of retirement.
So that's a big thing to make sure that you address in your marital settlement agreement, or if you're going to trial, ask the court to award you as being named the former spouse beneficiary of the survivor benefit plan, because that is a huge benefit that a lot of people forget about. And if it's not mentioned and if it's not elected at the time that the service members retires, you can't get it.
But then the other thing you have to keep in mind, and a big problem that people have and forget is if you do get named the former spouse beneficiary, there has to be a deemed election submitted to DFAS within one year of the final judgment being entered. And so if you forget to do that within the one year and that deemed election isn't accepted and honored, you lose that right to be the former spouse beneficiary. I can't tell you how many people have come to me saying that my final judgment was entered five years ago and my spouse didn't do this, and there's really not a whole lot we can do to fix it.
Pete Wright:
Wow. So in my head, you opened a can of worms with this. How does it work, how do these associations work when the service member not died, but remarried, when it comes to survivor benefits and things like that?
Kristin Scully:
So if the service member remarries, that's going to be one of those things where if the deemed election wasn't submitted naming the former spouse as a beneficiary, then the service member spouse is likely going to try to list their current spouse as a beneficiary. And that's where the problem comes in. But if you already have a former spouse beneficiary as the beneficiary listed for the survivor benefit plan, then the service member cannot list the new spouse as the beneficiary.
The other thing to keep in mind too is sometimes when we're dealing with these service members, you have to remember that when they enter the service, a lot of times they're 18 years old. So after 20 years of service, they're only 38, 39 by the time they retire. And so if you are representing the former spouse and she wants to be named the survivor benefitpPlan beneficiary, and she's only 38 years old or in her early 30s, you have to talk to her.
Do you think you'll ever get remarried? Because if you'll get remarried before the age of... Oh my gosh, now I'm going to blank, I think it's 57. You're going to lose that survivor benefit plan beneficiary designation if you get remarried. So then we might want to talk about maybe having life insurance instead of survivor benefit plan to secure the pension, because that's a huge thing that you're losing, and that you may have paid for. Because survivor benefit plan is paid for by both parties based on their pro-rata share of the pension. You don't want to-
Pete Wright:
That's fascinating.
Kristin Scully:
Yeah.
Pete Wright:
Oh, I'm so glad we opened that can of worms up again. Wow, that is really fascinating. Okay, so that's a big one. That's a big one. Don't get caught with the survivor benefit challenges.
Kristin Scully:
Yes.
Pete Wright:
Amazing. Kristin, thank you so much.
Kristin Scully:
Yeah.
Pete Wright:
This was illuminating. I'm so glad you came by to share this with our folks.
Kristin Scully:
Can I tell you one more thing?
Pete Wright:
You know, I'm with open arms.
Kristin Scully:
So the other thing that people need to make sure when there is a pension that's being divided, and there is more than 10 years of service, it has to be language in the final judgment that allows DFAS to divide that pension. And if your final judgment's missing that magic language, DFAS will not accept it. So you have to make sure that you have somebody that knows what they're doing involved in the entry or final judgment, and entry of a military pension division order, to make sure that it's accepted by DFAS and complies with the NDAA requirements for the court order.
Pete Wright:
Okay, so I hope everybody was taking notes.
Kristin Scully:
Yes.
Pete Wright:
These tidbits come hard and fast. Write them down, check the transcript everybody. Thank you so much, Kristin Scully for coming by here. Again, welcome to the firm. So glad to have you.
Kristin Scully:
Thank you.
Pete Wright:
Thank you everybody for downloading and listening to this show. We appreciate your time and attention. Don't forget, if you have a question for the show, just visit HowToSplitAToaster.com. And there's a button right there, it says, "Submit a question." You submit a question, and it will get answered maybe by Seth, maybe by our special guests. That's the really exciting part. On behalf of Kristin Scully, I'm Pete Wright, and we'll see you next time right here on How to Split a Toaster, a divorce podcast about saving your relationships.
Outro:
How to Split A Toaster is part of the TruStory FM Podcast Network, produced by Andy Nelson. Music by T. Bless and the Professionals and DB Studios. Seth Nelson is an attorney with NLG Divorce and Family Law, with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce and Family Law. Seth Nelson is licensed to practice law in Florida.
