Big Changes to Military Retirement Calculation

A New Rule Aims to Make Military Pension Division More Fair to Service Members.

Divorcing Servicemembers and their spouses should take note of the new rules regarding military pensions.  The Uniformed Services Former Spouse’s Protection Act gives courts the authority to award a portion of a member’s military retired pay to the former spouse as marital property in a divorce proceeding.  When awarding a former spouse a portion of the military pension, a court can award a fixed dollar amount or award a percentage of disposable retired pay.  When the service member is still on active duty, the former spouse’s award is expressed by an acceptable formula (typically the Coverture Fraction).

Prior to 2017, the Former Spouse’s award was automatically determined as a percentage of the member’s final disposable retired pay.  This meant that the former spouse would get the benefit of any increases in pay the service member earned through post-divorce promotions or years of service.  Many service members and their advocates cried foul.  In civilian divorces, a spouse is rarely entitled to such post divorce increase income, why should service members be penalized.

The solution came in the National Defense Authorization Act of 2017 (NDAA).  The 2017 NDAA changed the definition of disposable pay.  For Divorces entered after December 23, 2016, the active military member’s disposable income for purposes of divorce is limited to “the amount of basic pay, payable to the member for the member’s pay grade and years of service at the time of the court order.”    This means that former spouse’s will no longer receive a windfall if the service is promoted after the divorce.  No longer is a service member penalized for being successful.

If you are a service member or a former spouse, it is important that your attorney understand the changes to the military retirement.  An incorrectly drafted court order, could result in overpayment or a denial of processing by DFAS (Defense Finance and Accounting Service).

With our office located just outside of the Fort Lee Army Post, we have extensive experience representing clients in military divorce and custody cases.  To talk to a military divorce attorney, please give us a call 804-668—5327.  We offer discounts to service members and their families.

Major Life Change? Review Your Retirement Account Beneficiaries

If you have recently experienced a major life change, you need to review your beneficiary designations and estate planning documents.

Who Should Review Their Beneficiary Designations?

Anyone who is recently divorced, remarried or any person who had children should review their beneficiary information.

What Documents Should You Review?

  • Retirement beneficiary information including pension, profit-sharing, 401(K), IRA, and/or Thrift Savings Plan beneficiary information.
  • Life Insurance policies
  • Annuities
  • Transfer on death bank and brokerage accounts

Why Should Review Your Beneficiary Information?

There are numerous cases where an account owner has divorced and failed to remove his or her ex-spouse as beneficiary of their account.  It can be frustrating to the surviving children that their former step-parent gets a windfall from their parent’s retirement account or life insurance policy.  Even though the account may be address in a Final Decree or a Separation Agreement, you must still make the change with your account or plan administrator.

Additionally, if a child is named as your beneficiary, make certain that any children born after the document was initially signed have been added as a beneficiary.  If you fail to add them, they may not receive any benefit from the account.

What Happens if You Fail to Review Your Beneficiaries?

If you fail to review your beneficiary information, federal or state law may decide who is the beneficiary of your account.

I Changed My Will.  Isn’t that Enough?

Simply changing your will to disinherit your ex-spouse is not enough.  The accounts we are referencing in this piece are non-probate assets.  Meaning they do not pass under the terms of a will.  The beneficiary designations supersede the terms of the will.  Therefore, you need to change your beneficiary designations in addition to executing a new will.

What Should I Do Now?

  • Check the default provisions of the documents governing your retirement account.
  • Check with your plan administrator to determine who your beneficiary is.
  • Consult your accountant to determine the tax implications of naming someone as your beneficiary
  • Make any changes in beneficiary with your plan or account administrator
  • Request a receipt from the administrator to ensure all changes were made correctly.
  • Please note you cannot change your designations to “cut out” your spouse some of your non-probate assets like pensions or profit sharing plans, while you are still married without your spouse’s consent.  Federal law prohibits removing your spouse from some types of accounts without your spouse’s consent.

We are experience family law and estate planning attorneys.  If you need help with a will, power of attorney or estate plan in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

Are Survivor Benefits in Military Divorce a Waste of Money

Survivor Benefits May Not Be The Best Way to Protect Yourself

In a “military divorce case”, the retirement pension is one of the most coveted assets.  One component of the retirement pension is survivor benefits.  Often it is known simply by its acronym SBP, Survivor Benefits Plan.  Many a divorce lawyer has raised his or her voice and adamantly demand that his or her client get SBP benefits.  You see, a servicemember’s right to receive a military retirement pension terminates upon his or her death.  The SBP affords servicemembers the opportunity to purchase an annuity that pays his or her beneficiaries, a spouse or child, a defined percentage of his or her pension benefit upon his or her death.  The SBP essentially insurance policy that guarantees the beneficiary a percentage of the servicemembers retirement pay for the remainder of the beneficiary’s life.  The maximum amount a beneficiary may receive under SBP is 55% of the servicemember’s monthly retirement pay.

SBP is not automatic for any former spouse in a divorce case.  It comes with a cost.  The monthly SBP premium is expensive.  The monthly premium can be as much as 6.5% of the of the servicemember’s pre-tax gross retirement pay.  Former spouses in a divorce and equitable distribution case should be aware that the premiums for the SBP annuity reduces the retirement benefit amount that he or she receives each month.  The cost of the premiums is not borne by the servicemember alone.  Rather both parties get less than they would without the SBP.  A former spouse in a divorce needs to weigh the cost of the SBP vs. life insurance or other methods of protection.

For some spouses, the risk of getting nothing in the event of the servicemember’s death is enough to justify the reduction in their disposable share of the retirement.  However, in some cases paying the high cost of SBP makes no sense.  For example, if a former spouse remarries before she is 55, she is no longer an eligible beneficiary of the survivor benefits per 10 U.S.C. § 1450(b)(2).  In fact, in this scenario the survivor benefits may actually go to the servicemember’s new spouse.  In this case, the former spouse could be paying for the new spouse to have survivor benefits.  All because your attorney demanded the SBP protections.

Many times, a life insurance policy may be a better option.  You need to discuss your future plans with your military divorce attorney.  If you plan to remarry, tell your attorney.  If you don’t, you may be wasting money on your attorney and an expensive annuity.  That’s an expensive wedding gift for your ex and his new spouse.

The attorneys at paul | perdue attorneys can help you with military divorce or military custody in Chesterfield, Colonial Heights, Dinwiddie, Henrico, Hopewell, Petersburg, Prince George, Richmond or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

**This material is for Information Purposes ONLY and should not be construed as legal advice and does NOT create a legal relationship with Paul Perdue Attorneys PLLC.

Big Changes to Military Retirement

For the first time since 1948, there are big changes to the military retirement system resulting in major changes for servicemembers.  The 2016 National Defense Authorization Act authorized sweeping changes including an enhanced Thrift Savings Plan and reductions to the military pension percentage amount.

Why Make a Change?

The current military retirement system is an all or nothing system.  A servicemember is only eligible to receive monthly pension payments if he or she achieves 20 years of active duty military service.  If the servicemember exits the military prior to the 20-year mark, he or she gets nothing.  The Congressional Research Service has estimated that as a result of the 20 year requirement only 17% of enlisted soldiers and 49% of officers serve long enough to receive retirement benefits.[1]  Despite only covering a small fraction of those who serve, the military retirement system is costly to taxpayers.  It is estimated the cost to taxpayers of the military pension is $111 billion per year.[2]

Who is Impacted by the New System

The new military retirement system will take effect on January 1, 2018.  Servicemembers will be divided into three groups.  The first group are those serving on December 31, 2017 with more than 12 years of service at that time.  These service members will keep the current retirement system.  The second group are those serving on December 31, 2017 with less than 12 years of service.  This second group may choose to stay under the current system or choose to go under the new system.  The third group are those who join the military on or after January 1, 2018.  This group will be enrolled in the new retirement system.

What Does the New System Look Like?

The new retirement plan will include a new Thrift Savings Plan (TSP), a reduced pension benefit, a different continuation bonus, and an option to receive a partial lump sum payment against the pension.  A full explanation of the new plan is beyond the scope of this blog post.  However, for more details about the new retirement system, check out this article: http://www.militarytimes.com/story/military/benefits/retirement/2016/02/07/new-military-retirement-law-creates-big-decisions-many-troops/79347998/  However, I will highlight the changed to TSP.  Once the servicemember completes 60 days of service, the government will begin contributing 1% of the servicemembers base pay each month to the TSP account.  The government will match dollar for dollar the servicemembers contributions up to 3% of base pay.  Additionally, the government will pay $.50 for each dollar the servicemember contributes over 3% of base pay up to 5% of base pay.  The TSP becomes the servicemembers property at two years of service.  The new TSP puts the military benefits closer in line to many private employers and the federal civilian workforce.

What Does This Mean for Divorce?

The changes to the retirement system mean that servicemembers and former spouses need to be aware that military retirement is no longer just a pension.  The TSP is now a significant asset to be divided in a divorce.  The parties and their attorneys need to be aware of how their choice of benefits will affect property distribution in divorce.

If you need help with a military divorce or custody case in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

**This material is for Information Purposes ONLY and should not be construed as legal advice and does NOT create a legal relationship with Paul Perdue Attorneys PLLC.

[1] DoD Office of the Actuary, Valuation of the Military Retirement System, found at http://actuary.defense.gov/Portals/15/Documents/MRF_ValRpt2_2012.pdf

[2] Karmarck, Kristy, Congressional Research Service, Military Retirement: Background and Recent Developments, found at https://fas.org/sgp/crs/misc/RL34751, April 6, 2016

Fighting Over Fluffy and Fido

No, You can’t file for joint custody of the family cat or dog!

They sign your Christmas Card and travel along on family vacations.  Pets are an integral part of the modern family.  However, under Virginia law, pets are treated as property.  You cannot file for joint custody of your family dog.  Although you may consider your pet to be a part of the family, the law does not see it that way.

The LawRosie

Who gets the family pet is based upon the court’s weighing of the factors listed in equitable distribution statute, Virginia Code Section 20-107.3.  In this respect, the family dog is treated no differently than a bank account or bedroom suit.  The judge will look at such evidence as who purchased the pet and who has paid for the food, shots etc. for the pet.

Determining who gets the family pet can be particularly difficult for divorcing empty nesters or couples without children.  The Court of Appeals of Virginia in a recent case, Whitmore v. Whitmore, upheld the trial judge’s award of the family dog to the wife.  The Whitmore’s had no children and purchased the dog together.  In granting the dog to the wife, the trial judge looked at who had contributed to the acquisition and maintenance of the dog and who had played a significant role in the life of the dog up to that point.  The court also ruled that sharing such an asset would be “ill-advised”.  Consistent with principles of property division, the court awarded the Husband $750 for the cost of the dog, so that the Husband could purchase a dog of similar characteristics.

What Can You Do

If you and your ex want to share “custody” of your pet, your best course of action is a property settlement agreement.  In the agreement, you establish a specific plan for sharing time with your pet(s).  Additionally, the separation agreement can be used to resolve any other outstanding issues relating to your separation and divorce.  If the issue of who gets the pet(s) is left to the court, it is unlikely the court will order a time a sharing arrangement.

Further Reading

See Ben Steverman’s Article “In a Divorce, Who Gets to Keep the Family Dog?” Bloomberg, April 29, 2016.

We are experienced in handling divorce and custody matters in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

**This material is for Information Purposes ONLY and should not be construed as legal advice and does NOT create a legal relationship with Paul Perdue Attorneys PLLC.

Can I be legally separated in Virginia?

Short Answer: No

How do I get a legal separation is one of the questions I am asked most frequently in consultations with potential divorce clients.  There is no such thing as legal separation in Virginia.  In Virginia you are either 1) Married and living together; 2) Married and living apart; or 3) Divorced.

 

In order to obtain a no-fault divorce in Virginia, you and your spouse must have lived separate and apart without any cohabitation and without interruption for one year.  However, a divorce may be granted upon a period of separation of only six months if the parties have entered into a valid property settlement agreement and there are no children born or adopted by the parties.

 

The period of separation is based on public policy.  The state wants married couples with children to be absolutely certain that divorce is the best option for their family.  Typically, living separate and apart meant that one party had to move out of the marital residence and establish a new residence elsewhere.  However, the economic downturn has forced some couples to try and live separate and apart under the same roof.  This can be dangerous as some courts refuse to accept these arrangements.  If the court refuses to accept your alternative living arrangement, your separation period will not begin to accrue until one party moves out of the marital residence.  To improve your chances of having a court accept your living separately under one roof, we recommend that you and your spouse do the following (this is not an exhaustive list):

 

  • One spouse should deliver a formal letter to the other stating the intention to live separate and apart as of a certain date
  • Abstain from sexual relations with your spouse
  • Sleep in separate bedrooms
  • Do Not share food
  • Do Not Cook and Shop for each other
  • Do Not do each other’s laundry
  • Do Not give gifts to each other
  • Do Not attend social functions together
  • Do Not go out to eat together
  • Do Not hold yourself out to be a married couple
  • Separate Phone bills, email accounts, and bank accounts
  • Consider paying off and closing joint accounts and credit cards
  • Divide up household expenses, i.e. the electric bill

**This is not an exhaustive list.  Additionally, performing each item of this list does not guarantee that a judge will accept your alternative living arrangement.

 

If you need help with a divorce or custody case in the Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 and schedule a consultation to discuss in more detail.

Attorneys are expensive. Get your money’s worth!

Hiring an attorney is about more than knowledge and experience. There are a lot of lawyers to choose from in the marketplace today. Truth is there are probably too many lawyers. While your lawyer’s experience and knowledge are important, other qualities should also be considered. Most lawyers have the basic level of knowledge to get the job done. We all have to pass an exam simply to have the right to do the job.

Hiring an attorney is much like hiring a contractor to build your new house. It is unlikely that you would hire a contractor before reviewing a set of blueprints, discussing a budget and developing a timeline for completion of your new home. Your attorney should sit down with you and develop a plan. The first step in developing a plan is a discussion of your goal or desired result. Second, the attorney should discuss with you the strengths and weaknesses of your case. If your attorney tells you, your case doesn’t have any weaknesses, that you don’t have anything to worry about, or that he never loses, you need to grab your wallet and run out of his office. Every case has both strengths and weakness.

Next, your attorney should discuss a budget or an estimate of the total cost of representation. An attorney will ask you to pay a retainer for his or her services. This is typically only a down payment and not the total costs of services. Early on you and your attorney need to discuss both best and worst case scenarios for the total cost of your case. An attorney’s services are billed by the hour. That means you can be in the hole for thousands of dollars before you even know it.

Finally, your attorney should be solution oriented. When you build a house, you may have to forgo the sun porch or upgraded counter-top because its too expensive. With litigation, a win at all cost may not be the best solution for you. There may be alternative ways of resolving a dispute. Your attorney should be open to and discuss alternatives. Your goal should be a solution to your problem, not just winning on principle.

Does your Legal Advisor Reside in Cyber Space?

It’s on the Internet – it must be true and accurate!

There are many sources of legal information on the internet for individuals to review and gain knowledge. There is so much information that it can be difficult for the person with no legal training to separate trash from treasure.

Here are our suggestions as you troll through cyberspace looking for legal information or advice:

1) Don’t fall for fool’s gold. Any site that makes outlandish promises is probably too good to be true.

2) Read the tone of the information. If it tells you must act immediately then you may want to be a little more skeptical. You certainly do not want to sit on your legal rights and let a legal claim be lost, but very few legal claims have a deadline that is immediately due unless you’ve sat on your legal rights for some time.

3) Separate the sales pitch from the information. Evaluate the information and determine if it is trying to inform you or sell you something. This can be difficult because most firms, including ours, provide you information with the hope that you’ll see a need and believe that that firm is the appropriate place to help you with your legal need. There’s a balancing point – if it seems to be more of a sales pitch than useful information, you may want to be skeptical of the information.

4) The Information on the Internet doesn’t come with a warranty. There are many reasons that most, if not all legal web sites have disclaimers. Laws can change without website being updated and the reader may misinterpret or misunderstand what is written.

5) Making the best use of information that is on the internet. Much of the legal information on the internet can be used to give you background on a legal topic. Getting a general overview of how your legal problem is addressed prior to visiting an attorney can help you prepare for the visit and will allow you and attorney to accomplish more during the visit.

3 Things to Consider When Dating While Separated

Moving On Too Quickly Can Be Costly

Should you date while separated from your spouse? Moving on and dating again is a fact of life. However, moving on too soon can be a minefield that can impact your divorce, custody case and your future.

The Basics
There is no legal separation in Virginia. In order to obtain a divorce, you must live separate and apart from your spouse. The period of separation is one year if you have children with your spouse or six months, if you don’t have children and you have a property settlement agreement. Financial hardship or clogged court dockets often stretch the period of separation further than a year. Bottom line, you are still married until a final decree of divorce is entered by the court.  Unless you have a property settlement agreement allowing you to live as if you are single (sometimes called an adultery waiver), you risk damaging your case by dating too soon.

  1. Adultery
    Virginia code section 18.2-365 makes it a misdemeanor for any married person to have sexual intercourse with someone who is not his or her spouse. While the law is rarely enforced, you do risk prosecution by maintaining an intimate relationship during the period of separation.
  2. Equitable Distribution
    Equitable Distribution is the process by which a court divides marital property. A court is allowed to consider one party’s adultery when dividing the marital property. Usually, the court will only consider pre-separation adultery. However, your new significant other could make your spouse suspicious that something was going on before you separated. This could lead to a more extensive examination of your financial records, your phone records and your social media accounts. Finally, many divorces are worked out by agreement between the parties. However, the hard feelings caused by you moving on too quickly can sometimes make settlement impossible.
  3. Custody
    Child custody is the area where your new significant other can cause the most trouble. First, you need to determine what kind of baggage your new boyfriend or girlfriend carries with them. For example, if they have a criminal record or custody battle of their own. Additionally, some guardians ad litem have reservations about new people coming into a child’s life. This can impact the guardian’s recommendation on custody and could sway the court to award custody to your spouse. Further, some courts still put provisions into custody orders barring overnight guests of the opposite sex, unrelated by blood or marriage. A court can hold you in contempt for a violation of this provision.

So can you date if you’re separated from your spouse? Answer: it depends. If you need help with a divorce or custody case in the Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804)668-5327 and schedule a consultation to discuss in more detail.