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5 Important Facts About The Military Former Spouse’s Protection Act 2023

Gary Port
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5 Important Facts About The Military Former Spouse’s Protection Act 2023

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Introduction to the Military Former Spouse’s Protection Act

The Military Former Spouse’s Protection Act (MFSPA) or as it is also known the “Uniformed Services Former Spouses’ Protection Act (USFSPA)” is a federal law that was enacted in 1982 to address the issues surrounding the division of military retirement benefits in divorce cases. As military retirement pay is considered property, it can be divided between the service member and their former spouse during a divorce proceeding. The MFSPA clarifies the rights of former spouses and ensures that they receive their fair share of the military retirement pay. In this blog post, we will discuss the MFSPA, its implications on military divorces, and the new open period created by the National Defense Authorization Act (NDAA) of 2023.

The Military Former Spouse’s Protection Act Explained

Before The Military Former Spouse’s Protection Act, there was no standard for the division of military retirement pay in divorce cases. Courts in different states had their own interpretations and methods for dividing this property. The MFSPA establishes a legal framework for the treatment of military retirement pay in a divorce, ensuring that former spouses receive the benefits they are entitled to.

Under The Military Former Spouse’s Protection Act, also known as the Uniformed Services Former Spouses’ Protection Act (USFSPA), military retirement pay is considered “disposable retired pay,” which is the amount of retired pay available to the service member after deducting any outstanding debts, fines, or other obligations. Disposable retired pay can be divided between the service member and the former spouse, either as a fixed dollar amount or as a percentage of the total retirement pay.

Factors Influencing the Division of Military Retirement Pay

Several factors influence the division of military retirement pay, including:

  1. Length of marriage: The length of the marriage is an important factor in determining the percentage of retirement pay that a former spouse is entitled to. Generally, the longer the marriage, the higher the percentage of retirement pay the former spouse may receive.
  2. Overlap between marriage and military service: The court will also consider the number of years during which the marriage and military service overlapped. This is known as the “marital overlap” and plays a significant role in determining the former spouse’s share of retirement pay.
  3. Jurisdiction: State laws and court decisions play a crucial role in determining the division of military retirement pay. Some states follow the “community property” approach, where all marital property, including retirement pay, is divided equally between the parties. New York, however, follows the “equitable distribution” approach, where the court divides the property based on various factors, such as each spouse’s financial needs, contributions to the marriage, and earning capacity. New York specifically divides the pay by dividing the number of years of marriage, by the number of overlapping years of military Service. However, the years of service and rank are capped at the time of the divorce.

The 10/10 Rule and the Former Spouse’s Eligibility for Direct Payment

The 10/10 Rule is an important aspect of the Uniformed Services Former Spouses’ Protection Act (USFSPA). This rule states that the former spouse is eligible for direct payment of their share of the military retirement pay from the Defense Finance and Accounting Service (DFAS) if:

  1. The marriage lasted for at least 10 years, and
  2. The service member performed at least 10 years of military service that is creditable towards retirement during the marriage.

If the former spouse meets these requirements, they can apply for direct payment from the DFAS, ensuring that they receive their share of the retirement pay without relying on the service member to make the payment. If the 10/10 Rule is not met, the former spouse may still be entitled to a portion of the military retirement pay, but they will not receive direct payment from the DFAS. In such cases, the parties must work out an alternate payment arrangement, which may involve the service member making the payment directly to the former spouse or through a state-ordered garnishment.

Many people falsely believe that the 10/10 rules means that the spouse is automatically entitled to half of the retired pay. Under The Military Former Spouse’s Protection Act (or Uniformed Services Former Spouses’ Protection Act) this is utterly false.

Survivor Benefit Plan (SBP) and Former Spouses

The Survivor Benefit Plan (SBP) is a critical component of the military retirement system, providing financial protection to the service member’s surviving beneficiaries in the event of their death. Under The Military Former Spouse’s Protection Act (Uniformed Services Former Spouses’ Protection Act) former spouses can also be designated as SBP beneficiaries. This designation ensures that the former spouse continues to receive a portion of the service member’s retirement pay even after their death.

To qualify as an SBP beneficiary, the former spouse must meet specific requirements, such as being married to the service member for at least one year or having a child together. The service member and the former spouse can agree to designate the former spouse as an SBP beneficiary during the divorce process, or the court can order the service member to provide SBP coverage for the former spouse.

The election must be made in one year of the judgment of divorce. Congress in the National Defense Authorization Bill of 2023 reopened the election period until January 2024. However, as of the date of this blog, DFAS has not been complying with the law.

Blended Retirement System (BRS).

The National Defense Authorization Act (NDAA) of 2016 introduced significant changes to military retirement benefits, including the creation of a new open period for service members and their former spouses. This open period allows service members to make a one-time election to switch from the legacy High-3 retirement system to the Blended Retirement System (BRS). The BRS combines elements of the traditional pension system with contributions to the Thrift Savings Plan (TSP), a defined-contribution retirement plan similar to a 401(k).

The new open period has significant implications for military divorces and the division of retirement benefits. Service members who opt to switch to the BRS may see a reduction in their monthly pension payments, which could impact the amount of retirement pay that the former spouse is entitled to. Additionally, the division of TSP contributions may require a separate court order, known as a Qualified Domestic Relations Order (QDRO), to ensure that the former spouse receives their fair share of the retirement savings.

Divorcing a service member can be a complex process, particularly when it comes to understanding the Military Former Spouse’s Protection Act and the division of military retirement benefits. It is essential to consult with an experienced attorney who specializes in military divorce and is well-versed in the intricacies of the MFSPA and the implications of the National Defense Authorization Act of 2023.

Conclusion

In conclusion, the Military Former Spouse’s Protection Act ensures that former spouses of service members receive their fair share of military retirement pay in a divorce. The new open period created by the National Defense Authorization Acts of 2016 and 2023 add complexity to the division of retirement benefits, making it crucial for both service members and their former spouses to understand their rights and responsibilities under these federal laws. Call retired Lieutenant Colonel (JAG) Gary Port at (516) 352-2999 for a consultation.

2 Important Reasons Not to Use Spyware in a Divorce

Gary Port
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Spyware in a divorce. Privacy must be respected.
Spyware in a divorce. Privacy must be respected.

Using spyware in a divorce might seem like a good idea, but it is the worst idea you ever had. In the digital age, it has become easier to track people. Don’t do it, Judges will punish, often brutally, the party who has used spyware or GPS trackers on their spouse. It is also illegal and you can go to jail. Using Spyware or GPS tracking is an invasion of privacy during a divorce.

Unethical Conduct in a High-Conflict Divorce

In high-conflict divorces, emotions run high, and parties may resort to unethical and illegal tactics to gain an advantage over their spouse, such as using spyware. One such tactic is the use of spyware to monitor the other party’s conversations and gain insight into their legal strategy. However, this practice is not only illegal in New York, but it can also lead to severe consequences, including losing the right to seek equitable distribution of property.

Using Spyware in a Divorce is a Felony

I am asked often, by friends and family. “Is it illegal to spy on your spouse’s phone.” they ask. I reply, “Yes, absolutely. It is a felony!”

New York law clearly states that recording a phone conversation without the consent of at least one party is illegal. The state allows recording a conversation if done by one party to it, meaning that a person can record their own conversations without the other party’s knowledge. However, a third party cannot legally record a conversation, even if they are not participating in it. This is a criminal offense punishable by jail time.

Courts Have the Power the Punish a Person Who Uses Spyware in a Divorce

In the case of the litigant who bugged his wife’s telephone, he violated this law by installing spyware on her phone without her knowledge or consent. The spyware allowed him to listen to conversations between his wife and her attorney, giving him an unfair advantage in the divorce proceedings. However, his actions backfired, and he ended up losing the right to seek millions of dollars in equitable distribution.

The use of spyware in a divorce is not only illegal but also unethical. Divorce judges take a dim view of parties who engage in such behavior, particularly when the purpose is to intercept conversations between a litigant and her attorney. In the legal profession, attorney-client privilege is sacrosanct or to be meddled with and must be protected at all costs. A party who violates this privilege by spying on their spouse’s conversations with their attorney risks severe consequences.

The consequences of using spyware in a divorce can be severe. In the case of the litigant who bugged his wife’s telephone, the judge denied him the ability to seek any monies or property in the divorce. This decision meant that the husband, who might have had a shot at a lot of money, lost everything because he used this spyware. This severe punishment sends a clear message that the courts take a dim view of parties who resort to unethical and illegal tactics in a divorce.

If Spyware is Found, the Judge Can Adjust Equitable Distribution.

The Equitable Distribution Statute allows the judge to adjust the distribution of marital property from 50/50 to any other percentage. One of the factors the court can consider is the use of Spyware and tracking devices. The basic law for equitable distribution can be found here. Note, the court can consider any other factor. Using Spyware in a divorce, or GPS tracking are such factors.

Further, the court could determine that the use of Spyware or a GPS tracker constitutions a form of domestic violence. This article discusses that under New York Law the court can consider Domestic Violence in dividing property.

Using Spyware in a Divorce Will Damage the Children

The use of spyware in a divorce also has serious implications for the relationship between the parties. Divorce is already a traumatic experience, and spying on one’s spouse only serves to heighten tensions and mistrust. Such behavior can have long-lasting effects on the parties and their children, causing emotional harm and damaging relationships. It is essential to remember that a divorce is a legal process that requires parties to act in good faith and follow the law. The use of spyware goes against these principles and undermines the integrity of the legal process.

“But, She’s Committing Adultery.”

Too many people, not doubt having watched too much television, believe that adultery is important in a divorce. It is not. A hundred years ago an adulterer lost property rights and custody. This is the 21st Century. Adultery has no impact on property division in a divorce. It also has very, very, limited impact on custody.

For example, in one case, the wife moved the husband out of the house and moved the boyfriend in. There were 3 children of the marriage. The judge who was made aware of the situation still ordered the husband to pay child support, spousal support, and the mortgage while the divorce was pending. Yes, the husband paid for the privilege of having another man live in his house, sleep in his bed, eat his food, and sleep with his wife.

In another case, the husband tapped the house landline, because he was convinced that his wife was cheating on him. She found the tap, called the police, and had him arrested. He was charged with a class D felony. He pled guilty to a felony.

Finally, and to beat this point home, if your spouse commits adultery, you will not get the house.

You Can’t Sue Your Spouse

You can’t sue your spouse for an invasion of privacy during divorce because a divorce is about settling all issues between you, to include this one. As discussed above, the Judge has a great deal of power to adjust how property will be divided. One of the factors that the judge can consider is the use of Spyware or GPS trackers.

Conclusion

In conclusion, the use of spyware in a divorce is illegal in New York and can have severe consequences for the parties involved. Parties who resort to such tactics risk losing the right to seek equitable distribution of property and facing criminal charges. Moreover, the use of spyware undermines the integrity of the legal process and damages relationships between the parties. It is essential to act in good faith and follow the law in a divorce to ensure a fair and just outcome for all involved.

Call for a Free 15 Minute Consultation

Call Port and Sava at (516) 352-2999 for a free 15 minute consultation.

The Emotional Issue of Child Custody For LGBTQ Couples in New York: 2023

Gary Port
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The Emotional Issue of Child Custody For LGBTQ Couples in New York: 2023

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Child Custody For LGBTQ Couples

Introduction: the State of the Law 2023

Child Custody For LGBTQ Couples in New York: 2023 so that navigating New York claws for LGBT can still be a daunting task. I’ve done several articles over the years and the law does keep evolving. Here’s the state of the law as of 2023.

It is important to understand the nuances of Child Custody For LGBTQ Couples in New York to ensure that all parties involved have the best outcome. In this blog post, we will look at the laws governing custody for LGBT couples in the state, who gets custody in the event of a divorce, and the rights of LGBT parents.

Overview of New York Child Custody for LGBTG Couples

When it comes to Child Custody For LGBTQ Couples, often face unique challenges in New York. While the law continues to evolve there are several legal options for LGBTQ couples to ensure that both parties are legally recognized as parents. In recent years, New York has made strides in protecting the rights of LGBT parents, and the courts have become more open to granting custody to both biological and non-biological parents.

What is Child Custody?

Before we dive into Same-Sex or LBGTG Parenting, let’s first talk about the basics: the definition of Child Custody under New York law.

Child custody refers to the legal and practical relationship between a parent and a child. When a child is born to married parents or adopted by both parents, both parents automatically have legal custody of the child. However, when the parents are unmarried or separated, or when the child is born through assisted reproduction, the question of custody becomes more complicated.

In New York, there are two types of child custody:

  1. Legal Custody: Legal custody refers to the authority to make major decisions regarding the child’s upbringing, including medical care, education, and religion.
  2. Physical Custody: Physical custody refers to where the child lives and the day-to-day care of the child.

When a court makes a custody decision, it will consider the best interests of the child. The court will consider factors such as the child’s needs, the parent’s ability to care for the child, the child’s relationship with each parent, and the parent’s ability to cooperate with each other.

For more discussion about child custody laws, see this article.

Understanding Child Custody For LGBTQ Couples

Child Custody For LGBTQ Couples is becoming more common in New York, as LGBTQ` couples seek legal recognition of their children. Same-sex co-parenting involves two partners sharing parental rights and responsibilities for their child. This form of parenting is often used by both married and unmarried couples who are not able to conceive a child on their own.

Marriage provides the greatest protection for a non-biological parent. However, many couples choose to have a child without getting married. The nonbiological parent in these relationships has fewer rights.

In addition to same-sex co-parenting, LGBT couples may also pursue other legal avenues such as second-parent adoption, gestational agreements, and surrogacy. These legal options can help ensure that both partners are legally recognized as the child’s parents and can provide the necessary protections for both parties even if not married.

Child Custody For LGBTQ Couples in New York

In recent years, New York has made strides in protecting the rights of LGBTQ parents. In 2015, the state passed the Marriage Equality Act, which prohibits discrimination based on gender identity and expression. This law ensures that LGBTQ parents have the same rights and protections as opposite-sex couples when it comes to child custody.

In addition, New York courts have ruled that same-sex couples are eligible to seek custody of a child born to a surrogate mother. This ruling is a huge victory for LGBTQ parents, as it allows them to have the same legal rights as other parents. Child Custody For LGBTQ Couples has taken great steps forward since the passage of the Marriage Equality Act.

Biological and Non-Biological Parents

When it comes to child custody for LGBTQ Couples there are two types of parents: biological parents and non-biological parents. Biological parents are those who have a biological connection to the child, such as through conception or birth. Non-biological parents, on the other hand, are those who do not have a biological connection to the child but are still legally recognized as the child’s parents.

The legal status of non-biological parents can vary from state to state, but in New York, child custody for LGBTQ couples can seek legal recognition of their child through marriage, adoption, gestational agreements, and surrogacy. These legal options can help ensure that both partners have a legal relationship with the child and have the same rights and responsibilities as a biological parent.

In New York, same-sex parents have the same legal rights and responsibilities as opposite-sex parents. The state recognizes same-sex marriages and same-sex couples can adopt children.

If a same-sex couple has a child through assisted reproduction, the legal parentage of the child can be established in several ways:

  1. Birth Certificate: If the couple is married, both spouses can be listed on the birth certificate as the child’s parents. If the couple is not married, the biological parent can be listed on the birth certificate, and the non-biological parent can seek a second-parent adoption.
  2. Adoption: A same-sex couple can adopt a child together, regardless of whether they are married or in a domestic partnership.
  3. Surrogacy Agreement: If the couple uses a surrogate, they can enter into a surrogacy agreement that establishes the legal parentage of the child.

Who Gets Custody of a Child in a Divorce?

In the event of a divorce, the court will decide which parent will have legal and physical custody of the child. The court will consider a variety of factors, including the child’s age, the parents’ ability to provide a safe and stable home, and the child’s relationship with both parents. The court will also consider the wishes of the child if he or she is old enough to make an informed decision.

In the case of a same-sex couple, the court will usually grant joint custody to both parents if they agree to it. If the couple cannot agree on joint custody, the court may grant sole custody to either the biological or non-biological parent depending on the circumstances.

How to Establish Parental Rights for Non-Biological Parents

Child Custody For LGBTQ Couples also has the additional consideration of the non-biological parent. For non-biological parents, it is important to establish parental rights in order to ensure that the child is legally recognized by both parents. In New York, there are several ways to do this, if not married when the child was born, including second-parent adoption, gestational agreements, and surrogacy.

Second-parent adoption is a legal process that establishes parental rights for a non-biological parent. This process can be used to establish child custody for LGBTQ couples and in particular the nonbiological parent.

Gestational agreements are legal documents that establish the rights and responsibilities of both the gestational parent and the intended parents. This process is often used by same-sex couples who are unable to conceive a child on their own.

Surrogacy is a process where a surrogate mother carries and gives birth to a child for the intended parent(s). This process is often used by same-sex couples who are unable to conceive a child on their own.

Finally, if the parties were married when the child was born in the marriage then child custody for LGBTQ couples is established by law. The nonbiological parent is presumed to be the parent with co-equal rights to the biological parent. Again, be wary of certain states that are seeking to role back recognition of LGBTQ marriage, so that a second-parent adoption is suggested as a hedge against future political upheaval.

Custody and Visitation Disputes:

When parents cannot agree on custody or visitation, they can ask the court to make a custody determination. The court will consider the best interests of the child and will make a determination based on the evidence presented in court.

In New York, there are several types of custody arrangements:

  1. Sole Custody: One parent has legal and physical custody of the child.
  2. Joint Custody: Both parents share legal custody of the child, and the child lives with each parent for a specified period of time.
  3. Split Custody: Each parent has physical custody of at least one child.
  4. Bird’s Nest Custody: The child remains in the family home, and the parents take turns living in the home with the child.

When determining child custody for LGBTQ couples the courts will use the identical criteria as that of a non-LGBTQ couple.

Non-Biological Parent Issues

If a child is born during the marriage, then the non-biological parent has co-equal rights with the biological parent. If it sounds like I am stressing this, it is because I am. Marriage is the easiest route for the nonbiological parent to establish parental rights and child custody for LGBTQ couples.

A non-biological parent could get physical custody in divorce and the biological parent could only get visitation. As stated above, the court is looking into the best interests of the child, and there is no edge to being the biological parent. Child Custody For LGBTQ Couples is not dependant on who contributed to the DNA.

Third-party biological parents, who are not part of the marriage, such as a surrogate or semen donor may also have parental rights. These cases are very fact specific. A biological father to a lesbian couple who is known to the child and has been in the child’s life could be granted parental rights. Similarly, so could the surrogate mother. It is important, therefore, that before the arrangements are made, to consult with a lawyer.

The takeaway is that for child custody for LGBTQ couples biology is less important than the relationship of the parent to the child.

Second Parent Adoption in New York

Second parent adoption is a legal process that establishes parental rights for a non-biological parent. This process can be used by same-sex couples to establish both parents as the legal parents of the child.

In New York, second parent adoption is a relatively simple process. The non-biological parent must file a petition for adoption with the court, and the court will then review the petition and issue an order granting the adoption. The non-biological parent must then attend a hearing where the court will determine whether the adoption is in the best interests of the child.

Once the adoption is granted, the non-biological parent will have the same rights and responsibilities as the biological parent. This includes the right to make decisions on the child’s behalf, the right to seek custody of the child in the event of a divorce, and the right to seek financial support for the child.

While many states are firmly standing by LGBTQ rights, other states are retreating and may seek to abolish LGBTQ marriages. Efforts on the national level to enshrine LGBTQ marriages may not be all that helpful. This makes child custody for LGBTQ couples a bit more problematic than it should be. Therefore, it may be a prudent step to have a second parent adoption if you think that you will be moving to, or spending time in one of those states.

What are the Rights of Child Custody For LGBTQ Couples?

When it comes to child custody LGBTQ couples have the same rights and responsibilities as all other parents. This includes the right to make decisions on the child’s behalf, the right to seek custody of the child in the event of a divorce, and the right to seek financial support for the child.

In addition, LGBTG parents have the right to seek legal recognition of their child. This can be done through second parent adoption, gestational agreements, and surrogacy. These legal options can help ensure that both parents are legally recognized as the child’s parents and can provide the necessary protections for both parties.

Conclusion

Navigating New York child custody laws for LGBTQ relationships can be a complicated and daunting task. It is important to understand the nuances of LGBT family law in New York to ensure that all parties involved have the best outcome.

LGBTQ couples have access to a variety of legal options when it comes to establishing parental rights, including second parent adoption, gestational agreements, and surrogacy. These options can help ensure that both partners are legally recognized as the child’s parents and can provide the necessary protections for both parties.

It is important to understand the laws governing child custody for LGBTQ couples in New York in order to ensure that all parties involved have the best outcome. With the proper legal guidance, LGBTQ couples can ensure that their rights are protected and their children are legally recognized.

The 3 Important Parts of the FERS Program and New York Divorce

Gary Port
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The 3 Important Parts of the FERS Program and New York Divorce

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Federal Employees are eligible to receive a retirement benefit known as the FERS Program (Federal Employees Retirement System). The GS employee retirement is, for many, their largest asset. (Click this link for the OPM retirement benefits webpage: https://www.opm.gov/retirement-center/.) Under New York divorce law, FERS may be subject to equitable distribution. How much is going to be divided in the divorce depends on several factors. In this article, we will explore divorce and federal employee retirement benefits.

Introduction to FERS Program

The FERS program stands for the Federal Employees Retirement System and is the retirement system for most GS employees. It includes three components: a basic benefit plan, Social Security, and the Thrift Savings Plan (TSP). The FERS basic benefit plan is the largest component of the FERS retirement system. It provides an annuity benefit based on your years of service, your high-3 average salary, and the age at which you retire. Click here for OPM’s FERS Retirement Guide

How is FERS Calculated?

The amount of your FERS retirement benefit is determined by a formula that takes into account your years of service, your high-3 average salary, and your age when you retire. To calculate your FERS program benefit, you’ll need to determine your high-3 average salary and then use a FERS benefit calculator to calculate your benefit amount. The Official of Personnel Management has a website that provides some useful information about FERS. https://www.opm.gov/retirement-center/fers-information/

How is the High-3 Average Salary Determined?

Your high-3 average salary is the average of the three highest years of your salary over the course of your federal employment career. To determine your high-3 average salary, you’ll need to look at your pay stubs and then calculate the average of the three highest years.

Dividing FERS Retirement Benefits in a Divorce

Federal employees who are going through a divorce in New York should be aware that their FERS retirement benefits may be subject to division. Under federal law, a qualified domestic relations order (QDRO) can be used to divide FERS benefits in a divorce. A QDRO is a court order that assigns a portion of the benefit to the former spouse.

Under New York Divorce Law, FERS program will be divided according to the Majauskas Formula. The court will divide the years of marriage, by the number of years participating in FERS. That number is the marital percentage. Generally, the courts will award half of that percentage to the other spouse.

For example, if there were 20 years of marriage, with 20 years of overlapping participation in the FERS program, the marital percentage is 100% and the spouse gets 50%. If there were 10 years of marriage with 20 years of service, the marital percentage is 50% and the spouse gets 25%.

For more information on property division in a divorce click here.

Overview of New York Equitable Distribution

The equitable distribution law in New York is outlined in Domestic Relations Law §236B. This law states that when two people are divorcing, the court must make an equitable distribution of the marital property. This means that the court must decide how to divide the assets in a way that is fair and just. The court will consider various factors when making this decision, such as the age and health of each spouse, the duration of the marriage, and each spouse’s financial situation.

In general, all assets acquired during the marriage are subject to equitable distribution in New York. This includes both tangible assets, such as real estate and vehicles, and intangible assets, such as stocks and bonds. It also includes retirement accounts, pensions, and other forms of income. Additionally, some debts may be subject to equitable distribution if they were incurred during the marriage.

The law defines marital property as any assets or debts acquired by either spouse during the course of the marriage. This includes assets or debts acquired prior to the marriage, provided the title or deed was in both spouses’ names.

In addition, any assets or debts acquired during the course of the marriage, regardless of who purchased them, are considered marital property. This includes things like real estate, bank accounts, investments, and retirement accounts.

The law defines separate property as any assets or debts acquired prior to the marriage.

For example, if a spouse owned a home before the marriage, it would be considered separate property. The same would be true if a spouse had a for the FERS Program. However, if the marriage encompassed part of the federal time, then part of the FERS retirement would be marital.

The Thrift Savings Plan (TSP) and Divorce

In addition to the FERS program, there is also the Thrift Savings Plan (TSP), the federal government’s retirement savings plan. It is a tax-deferred retirement savings vehicle for federal employees. When a couple divorces, the TSP account may be subject to division.

The court may divide the TSP account between the spouses and issue a QDRO. If the TSP was created in marriage, then in divorce it will be, generally divided equally. If part of the TSP existed before marriage, then that amount will be exempt from equitable distribution.

Military Retired Pay and the FERS Program

Your Federal Employment Retirement System (FERS program) retirement benefits cannot include any military service in the computation if you are receiving a military pension, apart from two exceptions.

The first exception is if you were granted the pension due to a service-connected disability received from a battle with the enemy of the USA, from an instrumentality of war, or from duty during a wartime period.

The second exception is when you are retired from the Armed Forces’ reserve component as per Chapter 1223 of Title 10 of US Code. If you desire to have your military service credited in your FERS retirement, you must waive your military pension and pay the deposit for post-1956 military service before resigning from your job.

To collect FERS program credit for military service that happened after 1956, one must make a payment. The amount of this deposit depends on the dates of service: 3% of basic pay for services through December 31st, 1998; 3.25% for services between January 1st, 1999 and December 31st, 1999; 3.4% for services between January 1st, 2000 and December 31st, 2000; and 3% for services from January 1st, 2001 onward.

Before leaving their government job, personnel should pay their post-1956 military service deposit to their employing agency. For personalized help to calculate the payment, they can consult their local servicing personnel center, which has access to their employment records.

If the Military Retired pay which you are waiving was earned before marriage, that will be exempted from equitable distribution. Similarly, if the Military Credit occurred prior to marriage, that time will also be exempted from equitable distribution.

Qualified Domestic Relations Orders (QDROs)

A qualified domestic relations order (QDRO) is a court order that assigns a portion of your FERS retirement benefits to your former spouse. The QDRO must be approved by the Office of Personnel Management (OPM) before it can be enforced.

The OPM has specific requirements for QDROs, so it’s important to make sure your order meets all of the requirements. Once the order is approved, then the former spouse will receive their share directly from the government.

Strategies to Maximize Retirement Benefits After Divorce

It’s important to remember that your FERS retirement benefits are a valuable asset and should be protected in a divorce. There are strategies you can use to maximize your retirement benefits after a divorce. For example, you can maximize the amount of your benefits by making additional contributions to your Thrift Savings Plan (TSP). You can also take advantage of a FERS retirement calculator to estimate your benefits and plan for the future.

Conclusion

Going through a divorce can be a challenging time, and it’s important to make sure your FERS program benefits are protected. By understanding how to calculate FERS retirement benefits and using strategies to maximize your benefits, you can ensure that you’ll have the retirement security you need in the future. If you have questions about calculating FERS program benefits in a divorce, call Port and Sava at (516) 352-2999 for a free telephone consultation.

The #1 Important and Powerful the Role of the Attorney for the Child (AFC) in New York Custody Cases

Gary Port
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The #1 Important and Powerful the Role of the Attorney for the Child (AFC) in New York Custody Cases

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When it comes to custody cases in New York, having an Attorney for the Child (AFC) involved in the proceedings can provide an invaluable asset. But what does AFC mean, and what role does an AFC play in New York custody cases? In this blog article, we explore the meaning of AFC, the benefits of having an AFC involved in a custody case, and the qualifications and responsibilities of an Attorney for the Child.

What Does AFC Mean?

AFC stands for Attorney for the Child, a type of lawyer who specializes in representing children in custody cases. Also referred to as a child advocate attorney, child advocacy attorney, or child lawyer advocate, an Attorney for the Child is assigned by the court to represent the interests of the child in a custody dispute. The AFC is not the same as a lawyer representing either the mother or father in the case; they are an impartial third-party lawyer whose sole mission is to represent what the child wants. The AFC does not advocate for the best interest of the child. The AFC cannot substitute their own judgment over that of the child.

Overview of New York Custody Laws

In New York, custody laws are set forth in the both Statute and Caselaw (decisions by judges). The court is authorized to make custody orders in cases where the parents are not able to reach an agreement. The court is required to take a number of factors into consideration when determining the custody arrangement of a child, including the child’s age, developmental stage, and physical and mental health. For more on child custody click here.

What is an Attorney for the Child (AFC) and What Does an AFC Do?

An Attorney for the Child (AFC) is an attorney appointed by the court to represent the interests of the child in a custody case. Note, the “interests of the child” and not the “child’s best interests.” This is an important distinction. The AFC does not substitute their judgment over what the child wants.

The AFC is not a lawyer for either the mother or father in the case; they are a neutral third-party lawyer who is solely focused on looking out for the interests of the child.

The AFC’s job is to provide the court with an independent opinion about the child’s interests and to advocate for those interests in court. The lawyer may interview the child and other relevant parties, review any evidence, and present their findings to the court. The AFC may also provide legal advice to the child, if necessary. The AFC is the lawyer for the child, not for either parent. They also must operate under very strict ethical rules.

How Does an AFC Help in New York Custody Cases?

An AFC in New York custody cases can provide invaluable assistance to the court and the child involved. The lawyer’s independent opinion can help inform the court’s decision and ensure that the court understands all relevant factors when making a custody determination.

The AFC can also provide legal advice to the child and serve as a trusted advocate for the child’s interests. The AFC can help the child understand their rights and options, as well as provide support and guidance throughout the process.

Who Qualifies to be an AFC?

In order to become an Attorney for the Child in New York, a lawyer must have at least five years of legal experience, including three years of family law practice. The lawyer must also be in good standing with the New York State Bar and have completed a course in the representation of children in custody cases.

What Are the Responsibilities of an AFC?

The responsibilities of an AFC include reviewing the relevant evidence and interviewing any relevant parties, including the child. The lawyer should then present the evidence to the court and advocate for the child’s interests. The AFC should also provide the child with legal advice and support throughout the process.

Benefits of Having an AFC Involved in a Custody Case

Having an Attorney for the Child involved in a New York custody case can provide a number of benefits, including:

  • Providing the court with an independent opinion about the child’s interests
  • Assisting the court in making an informed decision
  • Providing legal advice to the child
  • Serving as an advocate for the child’s interests
  • Providing support and guidance to the child throughout the process

The Role of the AFC in Representing Children in Custody Cases

When representing a child in a custody case, the AFC must advocate for what the child wants. The lawyer should ensure that the child’s voice is heard and that the child is provided with the legal advice and support they need. The AFC should also be familiar with the relevant state laws and understand how to present the evidence in a way that is most beneficial to the child.

Courses for Becoming an Attorney for the Child

In order to become an Attorney for the Child in New York, a lawyer must have completed a course in the representation of children in custody cases. These courses can be taken online or in person, and typically cover topics such as interviewing techniques, legal ethics, family law, and the rights of children in custody cases.

Conclusion

When it comes to custody cases in New York, having an Attorney for the Child (AFC) involved in the proceedings can provide an invaluable asset. An AFC can provide the court with an independent opinion about the child’s interests and advocate for those interests in court. They can also provide the child with legal advice and support throughout the process. If you are involved in a custody case in New York and would like to learn more about the role of an AFC, call Port and Sava today for a free 15-minute consultation at (516) 352-2999.

Number 1 Amazing Fact of College Tuition and Divorce: Courts can order payment.

Gary Port
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Number 1 Amazing Fact of College Tuition and Divorce: Courts can order payment.

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College Tuition in divorce.

Introduction

A New York court can order a noncustodial parent to contribute towards college tuition and expenses. This power exists even if the parents were never married. It is important to keep in mind that child support continues while a child is in college, and is separate from college tuition.

In this article, we’ll explore the power of the New York court to order noncustodial parent contributions to a child’s college tuition, the factors that are considered when making such a decision, and how you can go about seeking such an order.

Beware, this is a complex and confusing topic. The courts have made a number of decisions over the last few years which have made this topic very hazardous for the noncustodial parent.

Child Support and Contributions to College Tuition End on Emancipation

In New York, Child Support continues until the child turns 21, not 18. The courts cannot order support after a child turns 21, and cannot order the noncustodial parent to pay college tuition after the child turns 21.

However, if the parties agree, in the stipulation settling their divorce to extend child support and the obligation to pay college tuition and expenses past 21, the court can enforce it.

But, absent that type of agreement, the court is without power to order any payments by the noncustodial parent after the child turns 21.

However, it is important to remember that a noncustodial parent must continue paying child support while the child is in college. But, Support Support and College Tuition, as well as room and board are different but related topics.

The Power of the New York Court

In New York, the court has the power to order a noncustodial parent to contribute to a child’s college tuition, in addition to regular child support payments. This is based on the idea that both parents have an obligation to support their children, even after a divorce or separation.

However, it’s important to note that in New York, the court’s power to order college tuition contributions is discretionary. This means that the court has the power to decide whether or not to order such contributions, based on a number of factors.

Child Support does not cover college tuition. College Tuition is a discretionary add-on. It is separate from child support.

The has the power to order the parents to cooperate on the filing of the FASFA

Factors Considered by the New York Court

When deciding whether to order a noncustodial parent to contribute to a child’s college tuition, the court will consider a number of factors. Some of the most important factors include:

  1. Financial Ability: The court will consider the financial ability of the noncustodial parent to contribute to a child’s college tuition. This includes factors such as the parent’s income, assets, and debts.
  2. The Child’s Best Interests: The court will consider the best interests of the child when making a decision. This includes factors such as the child’s academic abilities and future career prospects.
  3. The Child’s Relationship with the Noncustodial Parent: The court will consider the relationship between the child and the noncustodial parent. This includes factors such as the level of involvement of the noncustodial parent in the child’s life, and the quality of the relationship between the two.
  4. The Parent’s Ability to Pay: The court will consider the noncustodial parent’s ability to pay, taking into account factors such as the parent’s current financial situation, future earning potential, and overall standard of living.
  5. The Child’s Future Career Prospects: The court will consider the child’s future career prospects, taking into account factors such as the child’s academic ability and the type of career the child wishes to pursue.
  6. The Cost of College Tuition: The court will consider the cost of college tuition, taking into account factors such as the cost of tuition, room and board, and other related expenses.
  7. The Child’s Financial Resources: The court will consider the child’s own financial resources, taking into account factors such as the child’s savings, investments, and scholarships.

How to Seek an Order for Noncustodial Parent Contributions to College Tuition

If you are seeking an order for a noncustodial parent to contribute to a child’s college tuition, you will need to follow a few steps. These steps include:

  1. File a Motion: To seek an order for noncustodial parent contributions to a child’s college tuition, you will need to file a motion with the court. This motion should include information regarding the factors mentioned above, such as the financial ability of the noncustodial parent and the child’s best interests. You should also provide evidence and documentation to support your request.
  2. Attend a Hearing: After you have filed your motion, the court will schedule a hearing to determine whether to grant your request. During the hearing, both you and the noncustodial parent will have the opportunity to present evidence and argue your case. The court will consider the evidence presented, as well as the factors mentioned above, when making its decision.
  3. Consider Mediation: Before filing a motion or attending a hearing, it may be a good idea to consider mediation. Mediation is a form of alternative dispute resolution that involves working with a neutral third party to resolve disputes. Mediation can be a more efficient and cost-effective way to resolve disputes, and can help you and the noncustodial parent reach an agreement without going to court.
  4. Obtain a Court Order: If the court decides to grant your request for noncustodial parent contributions to a child’s college tuition, it will issue a court order. This order will set out the terms of the contribution, including the amount of money to be paid, the payment schedule, and any other relevant details.

It’s important to note that the court’s decision is not set in stone, and you may be able to modify the order if circumstances change. For example, if the noncustodial parent’s financial situation changes, you may be able to request a modification of the order to reflect the new circumstances.

Dollar for Dollar Credit for Room and Board Expenses

A dollar for dollar credit is a credit given to a noncustodial parent for expenses they have paid for their children that are not covered by regular child support payments. In the case of room and board expenses, this credit would be applied on a dollar for dollar basis, meaning that for every dollar spent by the noncustodial parent on room and board expenses, they would receive a dollar credit toward their child support obligations.

Why is a Dollar for Dollar Credit Important?

A dollar for dollar credit is important because it helps to ensure that noncustodial parents are not unfairly overburdened by child support obligations. In many cases, noncustodial parents may be paying for additional expenses for their children, such as room and board, that are not covered by regular child support payments. The credit helps to offset these additional expenses and ensures that the noncustodial parent is not paying more than their fair share.

Talk to a Lawyer Before You Start Deducting from the Child Support

Many noncustodial parents automatically start deducting room and board expenses without discussing it with their lawyer. Unfortunately, the laws governing dollar for dollar credit are not simple. Guessing wrong could result in an order of contempt and incarceration. To be blunt, short the child support and you can go to jail.

Common Dollar for Dollar Deduction Errors

When there are two or more children subject to the Child Support Order, do not, absolutely do not, divide by percentages. The most common mistake is, say when, there are two children to reduce the child support by half. The thinking is that one child is in college, so I’ll cut the child support in half. This will land you in jail.

The dollar for dollar deduction is only up to the child support obligation for that child. When there are two children, the child support obligation is 25% but for one it is 17%.

When there is one child the noncustodial parent can deduct the full 17%. Therefore, if the child support obligation is $25,000 per year, and the out of pocket (not from student loans) expense for room and board actually paid by the noncustodial parent is $25,000, then that is the deduction.

But, if the child suport for two children is $25,000 the noncustodial parent cannot deduct up to half, $12,500. THat parent can only deduct down to 17%, the amount of child support for one child.

If this sound complex and confusing, it is. This is why noncustodial parents are found in contempt and can go to jail.

Our advice is not just take the deductions. Talk to the custodial parent, talk to a lawyer, and if neccessary get a court order.

How to Obtain a Dollar for Dollar Credit for Room and Board Expenses

  1. Document Your Expenses: The first step in obtaining a dollar for dollar credit for room and board expenses is to document your expenses. This can be done by keeping receipts and records of payments made for room and board expenses. You should also keep a record of any agreements or arrangements you have made with the custodial parent regarding these expenses. If the child is living on campus, that is obtained from the bursar’s office. If the child is living off-campus, the lease and monthly payments will document that. While dorming the child will be on a food plan, but with off-campus living you will need to document money spend towards food.
  2. First, communicate with the other parent and explain which credits you will be claiming. If the parties agree, there is no need to take any further steps.
  3. File a Motion with the Court: If you are seeking a dollar for dollar credit for room and board expenses, and cannot agree with the other parent, you will need to file a motion with the court. In the motion, you should outline the expenses you have paid for room and board, as well as any agreements or arrangements you have made with the custodial parent.
  4. Attend a Hearing: After you have filed your motion, the court will schedule a hearing to determine whether to grant your request. During the hearing, you and the custodial parent will have the opportunity to present evidence and argue your case. The court will consider the evidence presented when making its decision.
  5. Obtain a Court Order: If the court decides to grant your request for a dollar for dollar credit for room and board expenses, it will issue a court order. This order will set out the terms of the credit, including the amount of the credit, how it will be applied, and any other relevant details.

It’s important to note that the court’s decision is not set in stone, and you may be able to modify the order if circumstances change. For example, if the expenses you are paying for room and board increase, you may be able to request a modification of the order to reflect the new circumstances

Conclusion

In conclusion, the New York court has the power to order a noncustodial parent to contribute to a child’s college tuition, in addition to regular child support payments. The court will consider a number of factors, including the financial ability of the noncustodial parent, the child’s best interests, and the cost of college tuition, when making its decision.

If you are seeking an order for noncustodial parent contributions to a child’s college tuition, it’s important to follow the steps outlined above, including filing a motion, attending a hearing, and obtaining a court order. By doing so, you can help ensure that your child has the resources they need to succeed in their education and future career.

If you have any questions on this very complex and confusing topic, call Port and Sava at (516) 352-2999 for a free telephone consultation.

The Family Court and Supreme Court, The 2 Important New York Courts That Handles Family Matters

Gary Port
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The Family Court and Supreme Court, The 2 Important New York Courts That Handles Family Matters

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New York has two courts to handle Family Law matters: the Family Court and Supreme Court.

The Family Court cannot issue a divorce or divide the property. Only the Supreme Court can issue a judgment of divorce and handle the division of marital property. Which court you should use depends on your particular circumstances.

When dealing with family law matters in New York, individuals often encounter the terms “Family Court” and “Supreme Court.” It can be confusing to understand the difference between the two and which court has jurisdiction over a specific case. In this blog, we will explain the difference between the New York Family Court and the New York Supreme Court in family law matters to help you navigate the legal system.

New York Family Court

This Court is a specialized court that handles family law matters such as child abuse, neglect, adoption, and juvenile delinquency. It also handles child custody, child support, and spousal support, but NOT divorce cases. It is a court of limited jurisdiction, which means that it can only hear cases that fall within its specific area of authority. It doesn’t handle divorce or the division of property.

The Family Court is designed to provide a less formal and less intimidating environment for families who are dealing with sensitive and emotional legal issues. Judges are trained to handle family law matters and are familiar with the unique legal and social issues that arise in these cases.

One of the primary benefits of the Family Court is that it offers a range of services and resources to help families resolve their disputes. For example, it offers mediation, a process in which a neutral third party helps the parties reach a mutually acceptable agreement. Mediation can be a faster, less expensive, and less stressful way to resolve a family law dispute compared to a trial in court. In fact, people can file their own cases without the need for a lawyer.

Another benefit is that it provides a number of support services to families, such as counseling and referrals to community resources. The Family Court also works closely with social service agencies, such as child protective services, to ensure that children are protected and that their best interests are being served.

New York Supreme Court

The New York Supreme Court is the state’s trial court of general jurisdiction. It hears a wide range of civil and criminal cases, including family law matters. Unlike the Family Court, the Supreme Court has unlimited jurisdiction and can hear any case that falls within its area of authority. Only the Supreme Court can issue a judgment of divorce or divide the marital property.

In family law matters, the Supreme Court hears cases that are too complex or serious to be handled by the Family Court. For example, the Supreme Court may hear cases involving high-stakes child custody disputes, complex financial issues, or allegations of abuse or neglect.

The Supreme Court is a more formal and formalistic environment than the Family Court, and the legal proceedings in the Supreme Court can be more complicated and time-consuming. The judges in the Supreme Court are experienced and well-versed in the law, but they may not be as familiar with the unique legal and social issues that arise in family law matters.

Conclusion

In New York, family law matters can be heard in either the Family Court or the Supreme Court, depending on the nature and complexity of the case. The Family Court is designed to provide a less formal and less intimidating environment for families and offers a range of services and resources to help families resolve their disputes. The Supreme Court is the state’s trial court of general jurisdiction and hears cases that are too complex or serious to be handled by the Family Court.

It is important to understand the difference between the Family Court and the Supreme Court in family law matters and to choose the right court for your case. If you are facing a family law dispute in New York, it is recommended that you consult with a family law attorney to help you navigate the legal system and protect your rights.

Call Port and Sava for a Free 15 Minute Telephone Consultation at (516) 352-2999

6 Important Factors in Modifying Child Custody in New York

Gary Port
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6 Important Factors in Modifying Child Custody in New York

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Navigating the process of modifying child custody in New York can be an overwhelming experience. With so many laws and regulations, it is important to understand the process of child custody modification in New York. This article will discuss the process of modifying child custody in New York, including when you can seek a modification, what factors can affect a modification, how to request a modification, how to prepare for a modification, what to expect during a modification, and what happens after the modification.

Introduction to Child Custody Modification in New York

Child custody modification in New York is the process of changing an existing court order for custody or visitation of a child. The court order is usually modified if there is a substantial change in the circumstances of either parent or the child. It is important to note that child custody modification must be done through the court system, and cannot be done without a court order.

In New York State, the court order is based on the best interests of the child. This means that a modification of child custody must be in the best interests of the child. The court may consider a variety of factors when deciding on a modification of child custody, such as the age of the child, the relationship between the parents, the relationship between the child and the parents, and any other factors that may affect the child’s welfare.

Understanding the Process of Modifying Child Custody in New York

In New York, the court will take into consideration the best interests of the child when deciding on a modification. The court will also consider the relationship between the parents and the child, the wishes of the child, and any other factors that may affect the child’s welfare.

When Can You Seek a Modification of Child Custody in New York?

In New York, a modification of child custody can be sought when there is a substantial change in the circumstances of either the child or the parent. This means that if either the child or the parent has experienced a significant change in their life, such as a change in residence, a change in employment, a change of one of the parent’s life or living conditions, or a change in income, then the other parent may seek to modify the court order for child custody.

It is important to note that a modification of child custody cannot be sought simply because one parent does not like the existing court order. The court must be able to identify a substantial change in the circumstances of either the parent or the child in order to consider a modification.

What Factors Can Affect a Modification of Child Custody in New York?

When modifying child custody in New York, the court will consider a variety of factors to determine what is in the best interests of the child. These factors include the age of the child, the relationship between the parents, the relationship between the child and the parents, and any other factors that may affect the child’s welfare.

The court may also consider the wishes of the child if the child is old enough to express an opinion. The court will also consider the ability of the parents to communicate and cooperate in making decisions about the child. In addition, the court may consider any other factors that may impact the child’s welfare, such as the ability of the parents to provide for the physical and emotional needs of the child.

For example, if the custodial parent has neglected the child, or now lives in an unstable environment. Or if the noncustodial parent has become unstable or has neglected the child.

One of the most frequent complaints is that the other parent abuses drugs or alcohol.

Change of Circumstances – A Real-Life Example From a Published Appellate Decision

An appellate Court addressed the issue of Change of Circumstances in an October 20, 2022 decision. In this case, the father and the mother had been divorced for several years and had a custody agreement in place for their child. However, the father later filed a petition to modify the custody arrangements, arguing that there had been a change in circumstances that warranted a change in custody.

The father argued that the mother’s living conditions had changed and that her new living situation was not in the best interests of the child. He also argued that the child’s relationship with him had improved and that it would be in the child’s best interests for him to have primary custody.

The mother opposed the father’s petition, arguing that the child’s living conditions had not changed significantly and that the child’s relationship with the father had not improved enough to warrant a change in custody.

The court ultimately denied the father’s petition, stating that he had not met the burden of showing a change in circumstances that would warrant a change in custody. The court also found that the child’s relationship with the father had not improved enough to justify a change in custody.

The court’s decision highlights the importance of showing a significant change in circumstances when seeking a modification of custody arrangements. The court also emphasized the importance of considering the child’s best interests when making a custody decision.

This case serves as a reminder that custody arrangements are not set in stone and can be modified if there is a change in circumstances that would warrant a change in the child’s best interest. It is important for parents to understand that they can petition for a change in custody when there is a change in circumstances that affects the child’s well-being, but also that they have to demonstrate the change and that it is in the child’s best interest.

What is the Process for Modifying Child Custody in New York?

The process for modifying child custody in New York begins with filing a petition with the Family Court. If this is a post-divorce matter, the party can file either a motion in Supreme Court or a petition in the Family Court. This petition (or motion) must include information about the current court order, the reasons for seeking the modification, and any other relevant information. The petition (or motion) must be served on the other parent, who then has the opportunity to respond to the petition (or motion).

It is important to note that filing a petition for a modification of child custody does not guarantee that the court will approve the modification. The court will consider the best interests of the child when deciding on the modification. Therefore, it is important to provide as much evidence as possible to support your position.

If both parties agree to the proposed modification, the court may approve the modification without a hearing. If the parties do not agree, the court may order a hearing to determine whether the proposed modification is in the best interests of the child. At the hearing, both parties will have the opportunity to present evidence and witness testimony to support their position.

How to Prepare for a Modification of Child Custody in New York

When preparing for a modification of child custody in New York, it is important to be prepared for the process. You should gather all relevant documents, such as court orders and financial records, as well as any other evidence that may support your position. You should also be prepared to present your case in court. This may include preparing witness testimony, gathering supporting documents, and making a written statement to the court.

You should also be prepared to answer questions from the court, as well as questions from the other parent’s attorney. It is important to be prepared for the court hearing, as the court will consider all evidence presented in order to make a decision.

An experienced Family Court or Divorce lawyer can help you navigate the system. It is very unwise to try this without a lawyer. If the Family Court finds that you do not make enough money to hire a lawyer, it might appoint one for you.

After the Modification of Child Custody in New York

Once the court has made a decision regarding the modification of child custody in New York, the court order will be modified to reflect the court’s decision. It is important to note that a modification of child custody is a binding court order, and must be followed by both parties.

If the court order is not followed, either parent may file a motion to enforce the court order. This motion may result in the other parent being held in contempt of court, which could result in fines or jail time. Therefore, it is important to understand and follow the court order for child custody in New York.

Conclusion

Modifying child custody in New York can be a complex and confusing process. It is important to understand the process of modifying child custody in New York, including when you can seek a modification, what factors can affect a modification, how to request a modification, how to prepare for a modification, what to expect during a modification, and what happens after the modification.

At Port and Sava, we provide experienced legal guidance to help families navigate the process of modifying child custody in New York. If you need help modifying child custody in New York, call us today at (516) 352-2999 for a free 15-minute telephone consultation.

The Powerful Former Spouse’s Protection Act and Retired Military Benefits for Divorcees

Gary Port
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The Powerful Former Spouse’s Protection Act and Retired Military Benefits for Divorcees

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The Former Spouse’s Protection Act allows a state court to divide military retired pay (pension) in a divorce. There is no rule that after 10 years of marriage, the military retired pay is automatically divided in half (50/50). That is a military myth told by ignorant barracks lawyers.

Military Retirement Benefits and The Former Spouses Protection Act

Military retirement benefits are an important source of financial security for former military spouses. When a service member retires from the military, they are entitled to military retired pay. The amount of retired pay depends on the length of service, rank, and other factors.

The retired pay can provide a steady stream of income for former military spouses.
In addition to retired pay, military retirees are also eligible for health care benefits, survivor benefits, and other benefits. These benefits can provide financial security for former military spouses. Knowing which benefits are available and how to access them can help former military spouses achieve financial security.

Congress has recognized that Spouses serve as well by traveling with and supporting the military members. That is why they passed the Former Spouse’s Protection Act.

Types of Retirement Benefits

Military retirement benefits come in three forms: the “high-three” system, the “career status bonus” system, and the new Blended Retirement System is a new retirement plan that began in 2018. The high-three system is based on a service member’s highest-paid 36 months of service. The career status bonus system is based on a service member’s length of service.


Under the high-three system, retired pay is computed by multiplying the service member’s final base pay by 2.5%, and then multiplying it by the number of years of service. Under the career status bonus system, retired pay is computed by multiplying the service member’s final base pay by 2.5%, and then multiplying it by the number of years of service and the number of service points.


The Blended Retirement System combines a matching 401(k) type plan, where the government provides matching funds. However, instead of receiving a retirement of 50% of base pay at the end of 20 years, the service member will only get 40%.

Introduction to the Uniformed Services Former Spouses’ Protection Act

The USFSPA is a federal law that was enacted in 1982 to protect the rights of former military spouses. The law outlines the rights of former spouses to receive a portion of their ex-spouse’s military retirement pay, as well as other benefits. The USFSPA applies to members of all branches of the armed forces, including the Air Force, Army, Marines, Navy, and Coast Guard.


Under the Former Spouse’s Protection Act if a former military spouse is divorced or legally separated from a service member, they may be eligible to receive a portion of their former spouse’s retired pay. This is commonly referred to as the “10/10 Rule,” which states that if the couple was married for 10 years or more and the service member has been on active duty for 10 years or more, then the former spouse is eligible to receive a portion of the service member’s retired pay.

There is no rule that after 10 years the spouse gets half of the retired pay (pension). This is one of those military myths told by generations of barracks lawyers.

How the Former Spouse’s Protection Act Impacts Military Divorce

The Former Spouse’s Protection Act provides important protections for former military spouses that are going through a divorce. Under the law, a former spouse may be eligible for a portion of their ex-spouse’s retired pay, as well as other benefits such as health care and life insurance.


The Former Spouse’s Protection Actalso has important implications for military divorces. For example, the USFSPA requires that a former spouse must be notified of any changes to their former spouse’s retired pay, such as a change in rank or retirement status. This notification is required to ensure that the former spouse is aware of any changes that may affect their share of the retired pay.

Understanding Military Retirement Pay and Survivor Benefits

Military retirement pay is a vital source of income for many former military spouses. Under the USFSPA, a former spouse may be eligible to receive a portion of the service member’s retired pay. How the retirement pay is divided in a divorce will depend on the law of the state where the divorce is filed.

In addition to retired pay, the Former Spouse’s Protection Act also provides for survivor benefits. These benefits are paid to a former spouse if the service member dies while on active duty or after retirement. The amount of the benefit is determined by the service member’s rank and length of service.

DFAS Processes Military Retired Pay Orders

The Defense Finance and Accounting Service (DFAS) processes court orders dividing military retired pay if there were ten years of marriage with ten years of overlapping military service. This is the ten-year rule.


This is a lot of misinformation about the ten-year rule. Some people wrongly believe that the ten-year rule somehow entitles a spouse to half of the service member’s retired pay. This is completely false. Yes, I’ve said this 3 times already, but I’m trying to drive a stake in the heart of this myth.

How Is Retirement Pay Divided in Divorce?

When a military couple divorces, the court will typically order that a portion of the service member’s retired pay to be paid to the former spouse. This is known as a military retired pay division order.


The amount of the retired pay that is divided in a divorce is determined by the court. Generally, the court will order that the former spouse receive a percentage of the retired pay that is commensurate with the length of the marriage, the service member’s rank, and other factors.


In New York, the Majauskas formula is used. The judge will take the number of months of marriage and divide it by the number of years of military service. Half of that fraction will be what the spouse will receive. For example, 20 years of marriage and 20 years of service result in the spouse receiving 50% of the retired pay. However, 10 years of marriage with 20 years of service will result in 25%. The court will also assess the amount of the retired pay as of the rank at the time of divorce. So, if an E-9 is divorced as an E-6, the retired pay will be based on E-6 pay, not E-9 pay.

How Is Survivor Benefit Plan Pay Divided in Divorce?

In addition to retired pay, the Former Spouse’s Protection Act also provides survivor benefits, known as SBP. These benefits are paid to a former spouse if the service member dies while on active duty or after retirement. The amount of the benefit is determined by the service member’s rank and length of service and the amount of money paid as a premium.


When a military couple divorces, the court may order that a portion of the survivor benefit plan may be paid to the former spouse. This is known as a military survivor benefit plan division order. The amount of the survivor benefit plan pay that is divided in a divorce is determined by the court. Generally, the court will order that the former spouse receive a percentage of the survivor benefit plan pay that is commensurate with the length of the marriage and other factors.

The 20/20 Rule

A military spouse who was married for 20 years with 20 years of overlapping military service is called a “20/20 Spouse.” Such spouse will be entitled to TRI-CARE, as well as PX and Commissary privileges. This has nothing to do with the divorce and the former service member’s spouse cannot grant or withhold this right. It is conferred upon the former spouse by the U.S. Government.

What Other Benefits Are Available for Former Military Spouses?

In addition to retired pay and survivor benefits, there are other benefits available to former military spouses. These include the Veterans’ Benefits for Dependents and Survivors Program, the Military Spouse Divorce Entitlements Program, and other programs.


The Veterans’ Benefits for Dependents and Survivors Program provides financial and medical benefits to spouses, children, and other dependents of veterans. The program is administered by the Department of Veterans Affairs and is designed to provide assistance to former military spouses and dependents who may be in need of financial assistance.
These plans are independent of the divorce and the Court has no authority over them.

What Are the Benefits of Working with a Retired JAG Attorney?

When going through a military divorce, it is important to work with an experienced attorney who understands the Former Spouse’s Protection Act and other military laws. A skilled divorce attorney who is retired military can help a former military spouse understand their rights and options under the USFSPA, as well as help them navigate the process of dividing military retired pay and survivor benefits.


In addition, a retired service member divorce attorney can provide valuable advice and guidance on other issues related to a military divorce, such as property division, child support, and spousal support.


At Port and Sava, we are a Veteran owned business and we understand the unique issues that military families face when going through a divorce. Mr. Port is a retired JAG Lieutenant Colonel and Mr. Sava served ten years with a combat tour in the Horn of Africa, so we are committed to providing the highest level of legal representation to our clients. If you are a service member, veteran, or former military spouse and would like to learn more about your rights and options under the USFSPA, contact Port and Sava today for a free telephone consultation.

Conclusion

Divorce can be a difficult and stressful process for many military couples. The Former Spouse’s Protection Act provides important protections for former military spouses and outlines their rights to receive a portion of their former spouse’s retired pay, as well as other benefits. It is important for former military spouses to understand their rights and options under the Former Spouse’s Protection Act, as well as other military laws, in order to ensure that they receive the benefits to which they are entitled.


At Port and Sava, we understand the unique issues that military families face when going through a divorce. Our experienced attorneys are committed to providing the highest level of legal representation to our clients. We can help you understand your rights and options under the USFSPA and other military laws, as well as assist you in navigating the process of dividing military retired pay and survivor benefits. Call Lieutenant Colonel, Retired, Gary Port at (516) 352-2999 for a free telephone consultation.

How to Divide Your Assets Under New York Equitable Distribution Laws: 5 Factors

Gary Port
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How to Divide Your Assets Under New York Equitable Distribution Laws: 5 Factors

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Understanding Asset Division in New York Divorces

The New York Equitable Distribution laws govern how property is divided in a divorce. Couples must adhere to this law when dividing their marital property. To navigate this complex process, it is crucial to understand the factors that impact asset division and how the law applies to your specific situation. In this comprehensive guide, we will explore the key aspects of asset division in a New York divorce.

New York’s Equitable Distribution Law Explained

New York’s Equitable Distribution Law is centered on the idea that assets should be divided fairly and equitably during a divorce. The court takes into account various factors, including the duration of the marriage, each spouse’s income, their contributions to the marriage, and the standard of living established during the marriage, among other relevant factors.

In a divorce, the court differentiates between separate and marital property. Separate property includes assets owned by one spouse prior to the marriage and is not subject to equitable distribution. In contrast, marital property consists of assets acquired during the marriage and is subject to division according to the Equitable Distribution Law.

Factors Influencing Asset Division in New York Divorces

When determining equitable distribution under New York Law, the court considers numerous factors, including:

  1. Length of the marriage
  2. Income of each spouse
  3. Contributions of each spouse to the marriage (financial and non-financial)
  4. Standard of living during the marriage
  5. Other relevant factors

The court assesses both separate and marital property when deciding on asset division. Contributions from both spouses, including non-financial contributions such as homemaking and parenting, are considered. Additionally, the court may take into account special circumstances, such as the health of either spouse or agreements made between the parties.

Dividing Specific Assets in New York Divorces

The New York Equitable Distribution laws are more complex when dividing a marital home or retirement accounts, than dividing other assets. Here is a brief overview of how these assets may be divided:

  • Marital Home: The court considers various factors, including the length of the marriage, each spouse’s income, their contributions to the marriage, and the standard of living established during the marriage. Ultimately, the court aims to make a decision that is in the best interest of both parties. Generally, the house is sold unless there is a reasonable offset against another marital asset.
  • Retirement Accounts: Retirement accounts, including pensions, 401(k)s, and IRAs, are often subject to division during a divorce. The court considers the contributions of both spouses to the marriage, as well as any special circumstances and tax implications. The court will make a decision based on the best interests of both parties.
  • Other Assets: The court considers factors such as the length of the marriage, each spouse’s income, their contributions to the marriage, and any other relevant factors when dividing other assets, such as investments and business interests. The court may also consider special circumstances and tax implications.

The Process of Dividing Assets Under New York Equitable Distribution laws

The Process of Dividing Assets Under New York Equitable Distribution laws can be intricate and time-consuming. The court will first assess the separate and marital property and consider both spouses’ contributions to the marriage. Special circumstances, such as the health of either spouse or agreements between the parties, may also be considered. Additionally, the court will take into account the tax implications of dividing assets.

Once the court has weighed all relevant factors, it will issue a ruling on asset division. This ruling is final and binding, and it can take some time for the court to reach a decision.

Tax Implications of Asset Division in New York Divorces

Tax implications are an important aspect to consider when dividing assets in a New York divorce. The court will take into account the potential tax consequences of dividing assets when making its decision. For instance, the court may consider whether one spouse would benefit more from a certain asset to minimize taxes.

Additionally, the court will consider any taxes due on the transfer of assets between spouses. It is crucial to remember that taxes on asset transfers can be substantial, so carefully considering the tax implications when dividing assets in a divorce is essential.

In New York, the Equitable Distribution Law governs the division of assets in a divorce. To ensure a fair division of assets, it is vital to understand how these laws work and the factors that determine asset division. When dividing assets, the court will consider the length of the marriage, the income of each spouse, the contributions of each spouse to the marriage, and other relevant factors.

It is also crucial to take into account the tax implications of asset division. For example, the court may consider whether one spouse would benefit more from a certain asset to minimize taxes. Ultimately, the court will make a decision based on the best interests of both parties. It is a good idea to consult an accountant, as your divorce lawyer cannot provide tax advice.

If you are going through a divorce in New York and require assistance with dividing your assets, contact Port and Sava at (516) 352-2999 for a free 15-minute telephone consultation. Our experienced divorce attorneys can help you understand New York’s marital property laws and the process of asset division in a divorce. We can also provide guidance on dividing your assets fairly and equitably for both parties.

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