Germany German translation -- even if Defendant doesn’t speak German! Ich bin ein BERLINER! -- HOT TIP! --
Servicemembers Civil Relief Act [SCRA] Overcoming the obstacles…
Overview of the SCRA 50 U.S.C. App. 501 et seq. lWhy was it passed? lWhat kinds of obligations does it cover?
PURPOSE “Protect those who have been obliged to drop their own affairs to take up the burdens of the nation” “Protect those who have been obliged to drop their own affairs to take up the burdens of the nation” Boone v. Lightner 319 U.S. 561, 575 (1943) Boone v. Lightner 319 U.S. 561, 575 (1943)
LIBERAL CONSTRUCTION “The Act should be read "with an eye friendly to those who dropped their affairs to answer their country's call.” “The Act should be read "with an eye friendly to those who dropped their affairs to answer their country's call.” Le Maistre v. Leffers, 333 U.S. 1, 6 (1948). Le Maistre v. Leffers, 333 U.S. 1, 6 (1948).
“ Who’s covered by the SCRA? ” lActive duty servicemember [SM] lMobilized Guard/Reserve lNat. Guard [Title 32, federal emergency & funds] lDependents (sometimes)
“ Court ” Court Administrative Agency Whether or not of record DEFINITIONS §101
A Judge’s Guide to the Servicemembers Civil Relief Act “Who ya gonna call?” Resources, Resources, Resourceswww.ncbar.com/home/lamp.htm LAMP menu Other Publications / Resources
Default judgments – the BIG picture lWhat is a default? - No answer, counterclaim - No motions except: u“special appearance” to contest jurisdiction umotion for extension of time for answer
lPlaintiff’s Affidavit, Certificate, etc. 4Defendant not in military, and 4Factual basis; or 4Unable to determine status - court may require plaintiff to bond lCourt-Appointed Attorney before entering default 4Duties? Payment? PROTECTION AGAINST DEFAULT JUDGMENTS
SHALL lCourt SHALL Stay Proceedings 4Minimum 90 Days 4Application of counsel or court’s own motion lWhen Court Determines 4May be a defense that cannot be presented w/o presence of Defendant, OR 4After due diligence counsel has been unable to contact Defendant or otherwise determine if a meritorious defense exists PROTECTION AGAINST DEFAULT JUDGMENTS 50 USC App. §521
lCourt shall reopen when… 4SM applies on Active Duty or within 90 days thereafter, and shows 4Material effect, plus 4Meritorious defense
What is “Material Effect”??? lNo single definition lImpairment of ability to participate in civil suit due to military duties -OR- lImpairment of ability to pay financial obligations lCromer case
Stay of Proceedings – 50 USC App 522 lTemporary delay in lawsuit till SM can appear - 4SM has received notice of proceeding 4Applies at any stage of proceedings 4For at least 90 days
Motion for Initial STAY lHow to apply? What must you show?? Stmt re - 4Military duty materially affects ability of SM to appear + 4Date when SM can appear AND…
Motion for Initial STAY lHow to apply? What must you show?? [cont’d] CO statement: 4duty prevents SM’s appearance 4no leave allowed
Stay of Proceedings l No motion or request - no stay l Court doesn’t have to be a mind-reader l Vestal case
Subsequent Stay Motion: Inquiring into “Material Effect” l need for a hearing l stay is not automatic - court has discretion l limited discovery l no broad, conclusory statements l Booker v. Everhart
Ways to handle stay requests lMove ahead on uncontested claims lExamine stages of case for ones which can go forward-- 4answering complaint 4mandatory disclosure 4financial affidavit 4discovery, etc.
Ways to handle stay requests lIs presence of SM required? lUse of telephone… lOr videoteleconference… lOr Internet?
Ways to handle stay requests lUse of military leave? lHow much leave was requested? lNo leave usually available for training programs
Length of the Stay l“For such period as is just” lUp to rest of term of service? lFor the duration of the “material effect”? lFor the lifetime of the presiding judge?
Ways to handle stay requests lDue diligence lGood faith lJudkins case
When one parent is mobilized… lWill garnishment continue? lWhat about rent (eviction?) or mortgage payments (foreclosure?) lLet’s see how this works…
“HELP! What happened to my child support?” Dad was mobilized Garnishment stopped! Left his job Foreclosure, eviction? [Use §536!] “That’s the ol’ ball game!”
Deployment Child Support Issues lRestarting the garnishment lSame amount? lWhere send the notice & motion? 4Locating, AND 4Serving the other side!
Deployment Child Support Issues lProblems, questions… for the SM: 4“Should I move for a STAY?” 4“I want to request child support reduction -- How can I participate?”
Deployment Custody Issues lMom has custody of Debbie lGets orders to Kuwait [unaccompanied!] l???? Options ???? 4Give Debbie to neighbors? Grandparents? 4What about to D.A.D?? 4What if dad files for custody? Use SCRA?
Family Law lPaternity 4a civil court matter 4need for determination of paternity lChild support 4“interim support” when no order 4need for court order
Military Pay: lComponents of compensation: 4BP = Base Pay 4BAH = Basic Allowance for Housing 4BAS = Basic Allowance for Subsistence 4Special pay for airborne troops, doctors, divers, combat zone, etc.
The LES l“LES” = Leave and Earnings Statement lInvaluable resource for the court: 4All pay and allowances shown 4Accrued leave 4State for income tax w/h 4Date for entry on active duty 4Current rank, years of service lHow do you read an LES?
How to read an LES, OR “Through the pay statement jungle with gun and camera!” -- HOT TIP! --
Total Income = $6,091.86 Difference = $1,525.26 = BAS, BAH Taxable Wages = $4,566.60
What about child support? “ SHE WIPED AWAY HER TEARS WITH MY CHECKBOOK ”
Setting Child $upport lHow to set child support amount lAmounts to be considered lGrossing up the BAH, BAS
Setting Child $upport lFree treatment at military med. facilities lMedical coverage: TRICARE lDEERS enrollment lMedical expenses
Setting Your Sights on Enforcement Garnishment Involuntary allotment
Can a Servicemember Win Custody? lNegative aspects of military service lPositive aspects 4DODDS - Dept. of Defense Dependent Schools 4Youth activities programs 4Day care facilities 4Travel = learning and enrichment
Visitation in Military Cases lSetting a visitation schedule 4Local and… 4Long-distance l“Help! He’s kidnapped my baby!” DoD Dir. 5525.9
Don’t take things at face value! Examine jurisdictional basis for divorce
Jurisdiction for Domestic Cases lWhere can I file for divorce? 4My “home of record”? 4Where I’m stationed? 4My legal residence? 4My spouse’s legal residence?
Jurisdiction for Domestic Cases lWhere can I file for divorce? 4My legal residence 4My spouse’s legal residence [Williams v. NC, US Supreme Ct., 1945]
Basic training in divorce… lG.S. 50-18: fact or illusion? lStatute appears to say that SM stationed here for 6 months can file for divorce in NC
Basic training in divorce… lBut see Martin, 118 SE2d 29 (NC ‘61) 4Mere presence not enough 4Domicile required 4Statute really means that living on base is OK for domicile [if other aspects are also there] lEffects of divorce on military entitlements
lABA FAMILY LAW SECTION’S MILITARY COMMITTEE: www.abanet.org/family/military/ lDFAS WEBSITE: www.dod.mil/dfas Resources, Resources, Resources
Target Practice! Setting Your Sights on the Military Pension…
FORGET LONG-ARM STATUTES... THROW AWAY INTERNATIONAL SHOE FEDERAL JURISDICTIONAL LIMITS: 10 USC 1408(c)(4)
PENSION JURISDICTION IS LIMITED TO: Domicile Consent Residence not due to military assignment [Forum-shopping!] YIELD
How Much Money? lDivide disposable retired pay, not gross lNot more than 50% of DRP in general
Tricks & Traps lWaiver of retired pay for VA disability pay 4USFSPA says you cannot divide VA disability pay as property -- it’s exempt! 4VA payments are tax-free 4When VA election comes AFTER divorce… White v. White (reconfigure the prop. div’n.) lMerger of military service into fed. civil service for retirement
... for those left behind: SURVIVOR BENEFIT PLAN (SBP) S.B.P. = Single Biggest Problem
SBP Overview [10 USC 1447] lJoint & survivor annuity at SM's death l55% of SM's retired pay base amount lCourt can order SBP coverage lWithout it, pension ends at SM's death
SBP Overview [cont’d] lPremiums – 4come from retiree’s paycheck 4come “off the top” before DRP, taxes lNo “health qualification” of H or W lIncome for life of spouse, tax-free lInflation-proof
SBP Overview [cont’d] l CAUTIONS: 4MRS. SMITH: Don’t leave home without it! 4MRS. SMITH: Apply within 1 year of SBP order! l “FORMER SPOUSE” DESIGNATION: 4SGT SMITH: “Unitary” - can’t split between EX & current spouse 4SGT SMITH: Who pays for it? YOU BOTH do… DFAS won’t allocate premiums
"20-20-20 RULE" – Former Spouse Medical Coverage l20 YRS OF MARRIAGE + l20 YRS OF CREDITABLE SVC + l20-YR OVERLAP l= FREE MILITARY MEDICAL COVERAGE