Kansas Family and Divorce

New Online Resource for Servicemembers

Ben Stevens at the South Carolina Family Law Blog provided this great list of useful resources for our military service members.

The U.S. Department of Justice has created a website, Servicemembers.gov, to help members of the armed forces protect their legal rights. The site provides information on the following laws:

1. The Servicemembers' Civil Relief Act (SCRA), which provides civil protections for military personnel while on active duty.

2. The Uniformed Services and Reemployment Rights Act (USERRA), which protects servicemembers’ and veterans’ civilian employment rights.

3. The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), which requires that states allow certain citizens, including servicemembers and their families, to register and vote absentee in federal elections.

Ben's source for his post was New Site Covers Servicemembers' Rights' published at Robert Ambrogi's LawSites.

Custody Disputes and Active Military Duty

In a case in which Mother sought to modify a custody award that had granted sole custody of her child to Father's mother while Father was deployed to Iraq, Father requested a stay of the proceedings, citing the Servicemembers Civil Relief Act, 50 U.S.C.A. App. § 501 et seq. (2003). However, Father did not comply with the documentation requirements of the Act. Thus, whether to grant a stay was entirely within the discretion of the court. Since mother had a superior right to custody over paternal grandmother, the Kansas Supreme Court held that there was no abuse of discretion in denying a stay of the action and granting temporary custody to mother.

In re Marriage of Bradley, 2006 Kan. LEXIS 478 (July 14, 2006)

Thanks to the Family Law Prof Blog for its summary of the opinion.

Getting Military Health and Education Records

The Arizona Family Law Blog had the following post today:

"The following is an article by Mark Sullivan, who is an expert on Military Issues in Family Law.

Mark Sullivan, is a retired Army Reserve JAG colonel who practices with Sullivan & Grace, P.A. in Raleigh, NC. A board-certified specialist in family law and past president of the North Carolina Chapter of the American Academy of Matrimonial Lawyers, he is chairman of the ABA Section of Family Law Military Committee. Mr. Sullivan is also the author of the Section’s soon-to-be published, The Military Divorce Handbook, which will be available for distribution this Spring."

In addition, Alex provided a copy of information on getting military health and education records.

Download the article here: Getting Military Health and Education Records

Technorati Tags:
Divorce, Military and Family Law

Army Divorce Rates Drop as Marriage Programs Gain Momentum

Soldiers and their spouses are flocking to new and beefed-up programs to help them strengthen their marriages, and a dip in divorce rates appears to show it's having a positive effect, Army officials told American Forces Press Service.

Divorce rates among Army officers dropped a whopping 61 percent last year following a 2004 spike that sent shudders through the service. In 2004, 3,325 Army officers divorced, but that number dropped to 1,292 in 2005, Army officials said. Divorces also were down slightly among enlisted members, from 7,152 in 2004 to 7,075 last year.

Is My Spouse in the Military Service?

This post was done today by my family law blogging friend Lee Borden. Lee, at least in my opinion, is the pioneer of the family law information highway. His blog and website provides a huge amount of information and is well worth a look.

"Thanks to my friend and colleague Mark Sullivan for this one. As every person who has lost track of his spouse knows, the Service Members Civil Relief Act now requres that, before you obtain a default judgment against a defendant you can’t find, you certify that the defendant is not serving in the military service [...]"

(Via Lee's Divorce & Family Law Blog.)

Technorati Tags: Divorce, Military Divorce

DIVORCE & MILITARY RETIREMENT DISTRIBUTIONS UNDER USFSPA: Former Wife Taxable on Receipt of Former Husband's Military Retirment Pay

Here is another great post from Family Law Taxation.

DIVORCE & MILITARY RETIREMENT DISTRIBUTIONS UNDER USFSPA: Former Wife Taxable on Receipt of Former Husband's Military Retirment Pay: "

In Pfister v. Commissioner, the United State Court of Appeals for the Fourth Circuit (Fourth Circuit) addressed the issue of whether the taxpayer was taxable on amounts received from her former husband's military retirement pay pursuant to a divorce.

The taxpayer's former husband served in the United States Air Force and, upon his retirement, received a pension. In anticipation of their divorce, the couple entered into an agreement which provided that the taxpayer was to be the owner of one-half of the husband's disposable retired pay and would receive one-half of the payments (as provided by the Uniformed Services Former Spouses' Protection Act, P.L. 97-252 (1982), or USFSPA). This agreement was incorporated into their final divorce decree.

The taxpayer treated the payments she received during 1997 as nontaxable distributions on her 1997 Federal income tax return (on the belief that they were neither alimony nor retirement pay). The Tax Court held that the pension payments constituted taxable income to the taxpayer.

Pension income: Gross income is defined as 'all income from whatever source derived,' including pensions (see IRC section 61). The Fourth Circuit rejected the taxpayer's primary argument that disposable retired pay under USFSPA (10 U.S.C. 1408) entitles her to a portion of her former husbands retirement pay without any tax liability because disposable retired pay is determined after taxes are withheld. The Fourth Circuit interpreted this argument as to whether the taxpayer owned a portion of her husband's retirement pay.

USFSPA was enacted in 1981 to enable spouses and former spouses of military retirees to have an ownership interest in a retiree's retirement pay. Previously, a military retiree's retirement pay was property in which the retiree's spouse or former spouse could not claim an interest (see McCarty v. McCarty, 453 U.S. 210 (1981)). The sole purpose of enacting USFSPA was to overturn McCarty. The Fourth Circuit concluded that USFSPA applied to the retirement pay in question since the taxpayer's husband began receiving his retirement pay after 1981, and the couple divorced after 1981.

The Fourth Circuit held that the taxpayer was the owner of one-half of her husband's retirement pay; therefore, she is liable for the tax liability on this income. The language of USFSPA and the taxpayer's own agreement with her husband provided that the taxpayer would be the owner of one-half of the retired pay.

Nontaxable transfer incident to divorce: The taxpayer also argued that the retirement pay was not taxable on the premise that it was a transfer of property incident to the divorce from an individual to a spouse or former spouse (see IRC section 1041).

The Fourth Circuit concluded that although the transfer of the property right was nontaxable, the income produced from the property transferred is a taxable distribution since the taxpayer had no basis in this property; therefore, the distributions from the pension are includible in taxpayer's gross income.

* * * * *

"

(Via FAMILYLAWTAXATION.)

Army Officer Divorce Rates Fall

Army officer divorce rates made an about-face in 2005, falling sharply in the year after a spike in marital split-ups generated national debate over whether the war in Iraq was tearing families apart.
The dramatic increase, then decrease, in divorce statistics from 6 percent of all active-duty officers, about 60,000 total, in 2004 to 2.3 percent in 2005 had statisticians double-checking their numbers.

READ MORE AT ---->ArmyTimes.com

Judge Rules for Mother in Custody Case Where Father is in Iraq

Now this is very troubling.

LAWRENCE, Kan. - A custody battle between a Marine stationed in Iraq and his estranged wife may have implications for all Kansas service members who are overseas, according to a lawyer involved in the case.

A Franklin County judge has twice ruled that a federal law meant to protect military personnel from civil litigation does not apply in the custody case between Marine Cpl. Levi Bradley and his estranged wife, Amber Bradley.

Levi Bradley, who has lived in Pomona and Ottawa, filed for divorce in May. When he was deployed to Iraq, he asked for a delay in the custody case over their 2-year-old son.

The Servicemember's Civil Relief Act, signed in 2003, shields military personnel in Iraq, Afghanistan or other war zones from lawsuits and evictions until they are back in the U.S. The law required judges to postpone judgment for at least 90 days if the service member applies for more time.

Court records show that Levi Bradley and his mother, Starleen Bradley, had legal custody of the child when he was deployed in July. Amber Bradley, the Marine's estranged wife, signed the agreement.

The Uniform Services Former Spouses' Protection Act (USFPA)

The following information was provided by NLSONC.

Many issues arise when a service member and his or her spouse decide to get a divorce. Of major concern to both parties is the military spouse's continuing eligibility for commissary, exchange and health care benefits, as well as his or her eligibility for a portion of the servicemember's military retired pay. The Uniform Services Former Spouses' Protection Act (USFPA) addresses these concerns.

The USFPA does not automatically give a former spouse any of the member’s retired pay. Rather, the law permits a state to treat military disposable retired pay as marital property and therefore divide it in a divorce action. Disposable military retired pay is a service member’s monthly retired pay minus qualified deductions. USFPA allows the local court to treat military retired pay just as it would treat a civilian pension plan. Retired pay may be divided for property settlement purposes. Retired pay may also be garnished to satisfy child support and alimony obligations. Whether military retired pay will be treated as marital property and how the servicemember's military retired pay will be divided between the two parties upon divorce is decided according to state law. Maryland, Virginia and District of Columbia courts have treated a service member's military retired pay as a marital asset which can be divided in a divorce action.

Military Marriages: Can They Survive?

Can couples successfully cope with deployment? Here's an interesting article that ran in the Hartford Courant about the increasing military divorce rates and the strain war puts on military families. The military offers couseling and support groups, but is it really doing enough to help?