April 19, 2013

Georgia Military Divorce: Service Members Civil Relief Act

The Servicemember's Civil Relief Act (SCRA), an expansion and improvement of the former Soldiers' and Sailors' Civil Relief Act (SSCRA), can have an impact on Georgia divorce cases. See USC APPX. Sec. 522. The SCRA provides a wide range of protections for individuals entering the military, service members called to active duty in the military and deployed service members. The SCRA is intended to postpone or suspend certain civil obligations to enable service members to devote full attention to their military duty. A few examples of such obligations a service member may be protected against are: outstanding credit card debt, mortgage payments, pending trials, taxes, termination of leases.

Additionally, the SCRA also applies to divorce cases and to child custody actions where the absence of the military parent would materially impair his or her ability to prosecute or defend his or her rights to custody of a child. Derby v. Kim, 238 Ga. 429 (1977). In order to take advantage of the SCRA, the military service member must apply for or request a stay of the judicial proceedings. The service member must request a stay of judicial proceedings regardless of whether the service member is the plaintiff or defendant in the civil action. The SCRA requires that the service member request the stay of proceedings by making the statement that he or she is at the time actively in military service. Unless there is evidence that the servicemembers rights, as a litigant, will not be materially affected by a determination of the pending proceedings, it is mandatory that the application be granted. Parker v. Parker, 207 Ga. 588 (1951). Furthermore, it has been held by the Georgia Supreme Court that it is impossible for a wife to obtain alimony by cross-action against her service member husband without his waiver of the SCRA’s provisions, even where the husband has initiated the proceedings. Id.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

November 23, 2012

Can My Spouse Confiscate My Military ID Card During Our Divorce?

The short answer to this question is: absolutely not. Now for the longer version………

Often times, members of the military mistakenly believe that, because they are listed as the sponsor on the DD1172-11 military identification application form required for the issuance or renewal of family member identification cards, they can confiscate or refuse to renew their spouse's identification card any time they choose. This is absolutely not true. Family member or dependent identification cards, along with the privileges granted by such cards, are an entitlement granted by the United States Government, not the military sponsor. In other words, the military sponsor does not have the unilateral authority to decide who can and who cannot have a military identification card, and if you and your spouse are still married, even if there is a pending divorce, you are still entitled to your identification card. In fact, if your military spouse does deny you of this federal entitlement, your spouse may be in violation of certain federal regulations.

Every branch of the United States Military uses the same joint regulation which governs the issuance of military identification cards. This regulation is entitled: DOD Directive 1000.22. The relevant sections are 8.1.1 and 8.1.2. This directive provides, in part, that if a military member refuses to sign the required application for an identification card for a military dependent, that member is in contravention to the regulation, the Personnel Office at that member’s base may indicate such on the application form, and the Personnel Office may issue the ID card anyway.

However, in some cases, a nonmilitary spouse will lose his or her identification card and privileges once the divorce is final, unless one following exceptions applies:

1) If your military spouse has performed at least 20 years of service creditable for retired pay, and you were married to you spouse for at least 20 of those qualifying years, you will be entitled to full benefits (medical, base access, etc.) until you remarry. This rule is known as the "20/20/20" rule.

2) If your military spouse has performed at least 20 years of service creditable for retired pay, you have been married to your spouse for at least 20 years, and there was at least a 15 year overlap of the marriage and the military service, you will qualify for continued medical benefits only.

If you are currently going through a military divorce, or if you have questions concerning the law and rules applicable to military divorces, contact Meriwether & Tharp, LLC. One of our attorneys knowledgeable in the area of military divorce would be happy to assist you.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

January 9, 2012

Pension plans and divorce in Georgia

Atlanta divorce attorneys are often asked how pension plans are divided upon a divorce in Georgia. In general, pension plans are treated like any other property – if they accrued during the marriage, they are marital property subject to equitable division. Any portion that accrued prior to the marriage, however, is considered the separate property of that spouse.

Consider an example where a husband had a pension that began accruing in 1990, and the couple married in 1995 and divorced in 2005. In that situation, the wife would be entitled to an equitable portion of the pension that accrued from 1995 until 2005, but would not be entitled to anything from 1990 to 1995 as that portion would be the husband’s separate property.

Dividing pensions and other retirement accounts in a divorce can be complicated. Many companies have very specific regulations that must be followed and precise language that must be used in the divorce decree in order for the account to be divided. If you are dealing with one of these accounts in your divorce action, we recommend that you contact one of our Atlanta divorce attorneys for assistance to ensure a smooth division of these assets.

August 12, 2010

Military benefits as marital property

The Supreme Court of Georgia recently made a ruling that has the potential to affect every member of the military going through a divorce and dividing assets. In Michel v. Michel, the parties were married from September 1995 to February 2002, and then remarried from September 2002 until June 2009. Michel v. Michel, 286 Ga. 892, 893 (2010). In the 2009 divorce action, the wife sought a portion of the husband’s military retirement benefits as equitable division. Id. The Cherokee County trial court denied the wife’s request, finding that the current marriage at issue was only seven years and, pursuant to a code section of the Uniformed Services Former Spouses’ Protection Act, it could not award the wife an equitable portion of these benefits since the marriage was not ten years or more. Id.

The wife appealed, alleging that the trial court erred in ruling that it had no authority to award her a portion of these benefits, and the Supreme Court of Georgia agreed. Id. The Court held that “the Former Spouses’ Protection Act affirmatively grants state courts the power to treat military retirement benefits as marital property that is subject to equitable division upon a divorce.” Id., citing 10 USC §1408 (c)(1); Mansell v. Mansell, 490 U.S. 581, 584 (1989).

In addressing the ten year marriage requirement, the Court held that the requirement “is simply a limitation on the direct payment” of funds from the Federal Government to the former spouse, and “it has no bearing on a state court’s authority to treat military retirement benefits as marital property subject to equitable division, even when a marriage lasted less than ten years.” Id. at 894.

March 16, 2009

Marital Property in Georgia - Georgia Case Law Update

On January 12, 2009, the Supreme Court of Georgia addressed an interesting issue regarding equitable division of marital property in the Georgia divorce case of Smith v. Smith (S08F1706), where the parties had married and divorced each other twice. The parties were first married in 1979 and divorced in 1988. The remarried in 1999 and divorced in 2008. The trial court awarded the Wife, among other property, a portion of the Husband’s military retirement pay, and the Husband appealed that specific award.

The Husband argued that he retired from the military in 1995, between the parties’ first and second marriages and, thus, his military retirement pay was his separate property, not subject to equitable distribution. The Georgia Supreme Court agreed and reversed the judgment of the trial court. The Court held the military retirement pay to be the Husband’s separate property because all contributions to the plan predated the second marriage (i.e. there were no contributions during the second marriage) and, since the Wife was not awarded any portion of this account in the first divorce, that account became the Husband’s separate property at that time.