USPACOM FORWARD PRESENCE
JAPAN:
50,000 US military
(Army – 2K, Navy 20K, USMC
16K, USAF 12K)
9,000 DOD civilians
5,000 dependents
KOREA:
28,500 US military
20,000 Army, 8,000 USAF
200,000 US civilians
(not all DOD affiliated)
(TDF estimate 30,000 dependents)
Hey, we’re in the Pacific, too!
GUAM
6,000 US military
2,000? DOD civilians
10,000? military dependents
HAWAII:
50,000 US military
25,000? DOD civilians
64,000 military dependents
(but we’re not foreign countries)
Status of Forces Agreements
• Binding treaties between US
and host nation
• Covers US military, DOD
civilians, some contractors, and
their dependents,
• Determines who has criminal
jurisdiction, and what
protections will be afforded US
personnel charged with crimes
by host nation
• Determines process for claims
against US
• Determines entry/exit, visa and
customs requirements
• Determines access to civil court
system
Command Sponsorship
• Not automatic—some tours are
“unaccompanied.”
• Entitles family members to
protection of SOFA.
• Can be withdrawn by the
command.
• May affect family members
ability to remain in host nation.
• Entitles family to certain
benefits, such as family housing,
DOD schools, priority for
employment on base,
transportation and shipment of
household goods.
• Does not affect certain other
benefits, such as medical care,
access to PX/Commissary, NEO.
Family Law in Japan
• SOFA does not address access to courts
• No Fault—sort of (other grave reasons)
• No Alimony
• Minimal child support
• Custody usually to mom with no visitation to
dad
• Premarital property awarded to owner
• Other property goes to owner unless obtained
thru cooperation of both
• Law of Japan applies for “immovables” in
Japan
• Law of Japan applies of one spouse is
Japanese and “habitually resides” there
• Adultery is not a crime
Family Law in Korea
• SOFA civil courts open to US military
personnel
• No Fault only by mutual consent
• No Alimony
• Minimal child support, poor enforcement
• Parenting plan required, court awards
“fostering” according to best interest, with
visitation to other parent
• Premarital property awarded to owner
• Other property in discretion of the court
• Law of common nationality applies
• Law of Korea applies if one spouse is Korean
and “habitually resides” there
• Adultery is a crime, and grounds for
compensation
The “Family Advocacy Program”
• Used to deal with child abuse
and family violence.
• A tool of the commander.
• Case Review Committee makes
determinations whether
allegations of abuse are
“substantiated.”
• Can require SM to participate
in therapy, classes, etc.
• Can recommend non member
participate in therapy, classes,
etc.
• No due process.
Early Return of Dependents
• Humanitarian reasons
• Request of member spouse
• Request of nonmember spouse
• Family violence
• Misbehavior by dependents
Military Protective Orders
• Uniform across DoD
• Easier and faster
than Family Court
• No hearing, no trial,
no appeal
• Can only be used
against service
member
• Violations
punishable under
UCMJ
Military Support Regs
Rule No. 1:
The military will enforce a
court order.
Rule No. 2:
The military will enforce an
agreement.
Rule No. 3:
The military will use its
own rules if No. 1 and No.
2 don’t apply.
“The Air Force has no authority to
arbitrate disputed cases of non
support . . .”
NAVPERSINT 1715.030
simple, very punitive, based on gross pay per family member
AR 608-99
unbelievably complicated, 48 pages of single spaced 8 point type
LEGMAN P.5800.16a
primarily based on percentage of housing allowance
Marine Corps
Interim Financial Standards
“The Marine Corps
will not serve as a
haven for personnel
who fail to provide
adequate and
continuous support
for their family
members.”
Total of
Family
Members
Entitled
to
Support
Minimum
Amount of
Monthly
Support
per
Requesting
Family
Member
Share of
Monthly
BAH/OHA
per
requesting
Family
Member
1
$350
1/2
2
$286
1/3
3
$233
1/4
4
$200
1/5
5
$174
1/6
6 or more
$152
1/7, etc.
Example: E5 with wife and two kids.
Marine Corps Regs:
• “BAH with” is $1,794
• Member pays greater of
$233 per dependent OR ¾
(¼ per dependent) of “BAH
with”
• Member pays $1345
Hawaii Family Court:
• Assume nonmember
spouse is CP
• Assume CP has 0 income
• Assume NCP makes $4,700
• Assume no day care, SM
pays $29 Tricare Dental
• Assume not in military
housing
• CSGW support = $1,180
• Alimony = ?
Same case, CP works and has day care.
Marine Corps Regs:
• “BAH with” is $1,794
• Member pays greater of
$233 per dependent OR ¾
(¼ per dependent) of “BAH
with”
• Member pays $1345
Hawaii Family Court:
• Assume nonmember spouse is
CP
• Assume CP makes $2,500
• Assume NCP makes $4,700
• Assume $600 day care paid by
CP, SM pays $29 Tricare Dental
• Assume not in family housing
• CSGW support = $1,660
• Alimony?
Same case, NCP is in the Navy
Navy Regs:
• Member pays 3/5 of “gross
pay” (1/3 for spouse, ½ for spouse +1, 3/5
for spouse plus two or more)
• Member pays $2,820
Hawaii Family Court:
• Assume nonmember spouse is
CP
• Assume CP makes $2,500
• Assume NCP makes $4,700
• Assume $600 day care paid by
CP, SM pays $29 Tricare Dental
• Assume not in family housing
• CSGW support = $1,660
• Alimony?
Same case, NCP is in the Army
Army Regs:
Hawaii Family Court:
• Family Residing in miltary housing
– Member pays $0
• Family not residing in military
housing - Member pays “BAHwith,” in this case, $1,794
•
•
•
•
Assume nonmember spouse is CP
Assume CP makes $2,500
Assume NCP makes $4,700
Assume $600 day care paid by CP,
SM pays $29 Tricare Dental
• CSGW support = $1,660
• But if family resides in military
housing, that costs the SM
$1,794/mo, will the court treat
that as a child support payment?
• Alimony?
No support if:
•Payor is victim of
substantiated abuse
•Income of payee is
greater than soldier’s
military pay
•A court order exists but
is silent on support
•Payee is in jail
•Soldier has paid for 18
months
•Child has been
kidnapped and soldier is
attempting to regain
custody
•Spouse is guilty of
marital infidelity (Navy)
The Adjudicative Guidelines
§ 147.4
Guideline B—Foreign influence
.
(a) The concern. A security risk may exist when an individual's immediate family, including cohabitants and other persons to whom he or she may be bound by affection,
influence, or obligation are not citizens of the Untied States or may be subject to duress. These situations could create the potential for foreign influence that could result in
the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they
make an individual potentially vulnerable to coercion, exploitation, or pressure.
(b) Conditions that could raise a security concern and may be disqualifying include:
(1) An immediate family member, or a person to whom the individual has close ties of affection or
obligation, is a citizen of, or resident or present in, a foreign country;
(2) Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential
for adverse foreign influence or duress exists;
(3) Relatives, cohabitants, or associates who are connected with any foreign government;
(4) Failing to report, where required, associations with foreign nationals;
(5) Unauthorized association with a suspected or known collaborator or employee of a foreign intelligence service;
(6) Conduct which may make the individual vulnerable to coercion, exploitation, or pressure by a foreign government;
(7) Indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, coercion or
pressure;
(8) A substantial financial interest in a country, or in any foreign owned or operated business that could
make the individual vulnerable to foreign influence.
(c) Conditions that could mitigate security concerns include: (1) A determination that the immediate family member(s) (spouse, father, mother, sons, daughters, brothers,
sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to
choose between loyalty to the person(s) involved and the United States;
(2) Contacts with foreign citizens are the result of official United States Government business;
(3) Contact and correspondence with foreign citizens are casual and infrequent;
(4) The individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons or organizations from a
foreign country;
(5) Foreign financial interests are minimal and not sufficient to affect the individual's security responsibilities.
Domicile
• The jurisdictional basis of divorce is domicile.
• Three types of domicile:
– Domicile by origin
– Domicile by operation of law
– Domicile by choice
Establishing Domicile by Choice
• Actual residence with physical presence
• Intent to remain for an indefinite period of
time
• Intention to abandon old domicile
• Voluntary
• Exists until superseded
by a new domicile
Importance of Domicile
• Servicemembers
experience involuntary
mobility
• The Servicemembers Civil
Relief Act (SCRA) allows
Servicemembers to retain
their domiciles for tax and
voting purposes
• Servicemembers are
permitted to change
domicile during service
Presumption of Domicile
• Physical presence
• Evidence of intent (written or oral)
• Other affirmative acts
– Moving family to state
– Declaring residence in state documents and other
documents
– Paying taxes in that state
– Registered to vote in that state
State Income Taxes
• Many Servicemembers will elect to pay taxes
in a state that is not their domicile in order to
gain the tax benefits of that state
• Simply filing a State of Legal Residence
Certificate and opening a PO Box does not
mean a change of domicile has taken place
Home of Record
• Refers to place to which the Defense
Department will transport the Servicemember
and household goods upon separation from
service
• Military administrative term and not the same
as domicile
Residence
• Physical location of person
• Intent to remain not required
• A person may have multiple residences as
opposed to a person only having one domicile
• Most states, including Florida, have a 6 month
residency requirement
The Nonmilitary Spouse
• The nonmilitary spouse is able to establish a
domicile independent of the Servicemember
• The nonmilitary may lose benefits upon
divorce or dissolution of marriage
– Entitlement to live on base
– Military ID card
– Commissary and post exchange privileges
– TRICARE and other health care benefits
Servicemembers Civil Relief Act
• Provides for the temporary suspension of
judicial and administrative proceedings that
might adversely affect the Servicemembers
during their military service
Stay of Proceedings
• A stay is defined as a suspension of a civil case
until the Servicemember who is a party is
available to participate
• If no appearance is made:
– Determine his/her military status
– The court must decide whether
to grant a stay of the proceedings
– The ability to prosecute or defend must be
materially affected
Requirements for Application for Stay
• A statement as to how the
Servicemember’s current
military duties materially
affect his/her ability to appear
• Must state a date when the
Servicemember will be
available to appear
• Statement from
Servicmember’s commanding
officer that Servicemember’s
current military duty prevents
his/her appearance
• The stay is not automatic of
the time of the statement
Good Faith Requirement
• Servicemember must demonstrate good faith
and due diligence in his/her efforts to obtain
military leave to appear in court
Default Judgments
• May not be obtained against a Servicemember
in his/her absence unless the court follows the
procedures set out in the SCRA
• If Servicemember in military and the stay is
denied, court must appoint an attorney
• If attorney not appointed for Servicemember,
the judgment is voidable
If Default Judgment is Entered
• SCRA provides protection
• Allows the Servicemember who has not
received notice of the proceeding to move to
reopen a default judgment.
Support Issues for Servicember’s
Spouse
•
•
•
•
•
20/20/20
Twenty years of service
Twenty years of marriage
Twenty years of overlap
Former spouse entitled to full military medical
care
Support Issue’s for Servicembmer’s
Spouse (cont.)
•
•
•
•
•
20/20/15 (After April 1, 1985)
Twenty years of service
Twenty years of marriage
Fifteen years of overlap
Full medical benefits as long as spouse does
not remarry
Support Issues for Servicemember’s
Spouse (cont.)
• 20/20/15 (After April 1, 1985)
– Former Spouse entitled to a specific length of time
of enrollment.
Pension
• There are three formulas used to calculate
longevity retired pay.
• The Date of Initial Entry into Military Service
(DIEMS) determines which one will be used.
Fifty Percent Formula
• For all Servicemembers whose DIEMS date is
before Sept. 8, 1980:
• 2.5% x years of creditable service x final basic pay
of SM = retirement pay, not to exceed 75% of final
base pay
• Cost of living adjustment (COLA) applied on Dec. 1 of
every year
High-3 Formula
• DIEMS date is between Sept. 8, 1980 and July
31, 1986
• 2.5% x years of credible service x the average of
the highest 36 months of basic pay (last 36 months
before retirement average)
• COLA applied
REDUX Formula
• If DIEMS is on or after Aug. 1, 1986, 2 options:
• Servicemember may choose the High-3 Formula; or
• Servicemember may choose the REDUX formula:
» Must remain on duty for min. of 20 years and
will receive a mid-career bonus of $30,000
» Monthly retired pay is 40% of the average of the
highest 3 years of basic pay after 20 years of
credible service
» Servicemember receives a 3.5% increase per
year for additional years up to 30 credible years
» COLA calculated at 1% less than inflation
» At 62, the REDUX is recalculated and the REDUX
retirees receive the equal monthly pension as
the High-3 retirees
Uniform Services Former Spouses’ Protection
Act
• Passed by Congress to allow the state to divide
military retired pay in divorce and equitable
distribution proceedings on a uniformed basis
– Provides that former spouse’s share cannot
exceed 50% of the pension
– Cannot force an Servicemember to retire
– Payments cease upon Servicemember’s death
– Provides no formula in dividing the pension
Survivor Benefit Plan (SBP)
• An annuity that replaces the pension, since
the death of the Servicemember terminates
pension payments.
• Must clearly be stated in a separation
agreement/property settlement agreement if
one is intended
Roadblocks to Stop Division of Pension
• Jurisdiction
• Domicile
• Timeliness (must be
asserted before the final
judgment)
• Waiver (pre-nuptial, postnuptial, separation
agreement)
• Statutory Bar to Pension
Division (pension must be
vested – not all states
recognize this)
Disability Pay
• Pursuant to the Uniformed Services
Employment and Reemployment Rights Act:
– Retired pay: Servicemember’s normal retired pay
based on years of service x 2.5% x base pay
– Disability pay: Base pay x disability rating
– Retired pay (minus) disability pay ÷ 2 = nonmilitary spouse’s share
VA Disability Benefits
• Applies when the extent of the disability is not so great to
qualify for military disability or if the disability occurs or is
detected after retirement.
• The VA disability benefit of pension is tax free and is not
subject to property distribution.
• Therefore, non-military spouse receives:
• Gross retired pay (minus) VA disability benefits ÷ 2 (minus) taxes
How to Divide the Military Pension
• Reserve jurisdiction (puts off deciding the
issue for another day until Servicemember is
retired);
• Deferred division (payments to non-military
spouse begin when Servicemember starts
receiving pension payments);
• Present value offset (assets are traded against
the present value of the pension).
Determining Deferred Division
• Fixed dollar amount – determines how much per month
that non-military spouse receives
• Percentage clause – non-military spouse will receive a
specified percentage of Servicemember’s disposable
retirement pay
• Formula or hypothetical scenario for grade and years of
service: (typically) court will provide numerator (the
months of marriage during which time the
Servicemember performed creditable military service) ÷
months of service upon retirement (be sure to include
rank and years of service of the SM when award
submitted)
Calculating Present Value Offset
• Based on date of retirement:
• (Period of marriage concurrent with pension service) ÷
(total period of pension service) multiplied by the
pension benefit at date of retirement
• Based on date of divorce:
• (Period of marriage concurrent with pension service) ÷
(total creditable times as of the date of the marriage)
multiplied by the pension benefit at the date of divorce
• Valuation of the pension should exclude contributions
or service after the divorce
Custody/Timesharing and the SCRA
• Military custodian is entitled to a stay of
proceedings when absence from hearings is
due to military service
Custody/Timesharing and the SCRA
(cont.)
– Factors to consider stay:
• Importance of motion;
• Significant evidence the Servicemember can
provide;
• The amount of time allowed to Servicemember to
secure counsel and prepare a defense.
– A mere showing of active duty not sufficient
Mobilization and Deployment Clauses
• Include clause in agreements of what is to
happen to the custody of the children if an
Servicemember is deployed
• Include clause that Servicemember may have
his/her family/relatives as a third party
custodian so that they may still visit children
Jurisdictional Concerns
• If there is a temporary
change in
custody/timesharing
due to deployment,
then stipulate that the
“home state” of the
child has not changed.
• Initial state retains
jurisdiction to issue
subsequent orders.
Home State
• The state in which a child lived with a parent
or a person acting as a parent for at least 6
consecutive months immediately before the
commencement of a child custody
proceeding. In the case of a child younger
than 6 months of age, the term means the
state in which the child lived from birth with
any of the persons mentioned. A period of
temporary absence of any of the mentioned
persons is part of the period.
Custody/Timesharing for
Servicemember
• A popular assumption is that the Servicemember rarely
gets majority timesharing. This is a misconception. The
court examine the stability and continuity for the child
and will consider the following factors:
–
–
–
–
Where extended family members live;
Where Servicemember is living;
Willingness for one spouse to allow visitation with other spouse;
If the non-military spouse is married to Servicemember with the
possibility of relocating;
– Chance of tour of duty will be unaccompanied or can the child
travel with the parent.
Deployment and Child Custody
Bottom line: DOD is lobbying
states to amend their custody
laws to explicitly provide that
changes of custody due to
deployment are only temporary
and child custody decisions
cannot be “solely” based on a
parent’s deployment or
deployability. Some (including
Hawaii) have done so. There is
also a uniform act now
circulating.
(Family court practitioners
generally, but not universally,
oppose this)
Family Care Plan
• Used for long term absences.
• Instructions for special power of attorneys to make decisions
for the children while parent is away on duty.
• May also include caregiver’s responsibilities, health care,
dental, medical care.
• May also include a “stand in” visitation/timesharing where
the current wife of the Servicemember may stand in for
visitations when the Servicemember is away
• Also provide what is to happen upon the death of either
parent
Questions?