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This article has been reprinted with permission of The Florida Bar Journal; the original article appears in the July/August 1995 (Part 1) and October 1995 (Part 2) issues of the Journal.

By Peter Cushing (click here), Esquire, Orlando, Florida

     Representation of the nonmilitary spouse in a dissolution action requires specialized knowledge.  Federal law and regulations frequently govern or limit the relief available in State Court.  Jurisdiction, pension splits, insurance, and health benefits all involve the application of complicated rules.  The following suggestions seek to advance the interests of the nonmilitary spouse.

1.  Thou Shalt Obtain Personal Jurisdiction
     Assuming that Florida is the matrimonial domicile of the marriage and that dissolution subject matter jurisdiction exists, it is still necessary to personally serve the active duty member with a summons and petition for dissolution of marriage in order to invest the court with complete jurisdiction.¹  If the respondent is overseas or deployed, this service can be extraordinarily difficult.  It is not possible to compel military authority to serve the summons and petition on an active duty member.²  It is possible to request that military authority serve the active duty member, but service is allowed only with the active duty member's consent.³  If the member will not consent, one solution is to have the court appoint an active duty, reserve, or even civilian natural person as an officer of the court to serve the papers.  However, service aboard any ship or shore installation violates military regulations.⁴  Also, service in the territorial jurisdiction of many foreign nations may violate the Hague Convention.⁵  Pursuant to the Hague Convention,⁶ it is possible and preferable to serve the summons and petition abroad by mailing the documents to the "central authority" who will then accomplish service in accordance with the law of that jurisdiction, which is sufficient under Florida Law.⁷  Over 30 countries are parties to the Convention.⁸
     A recent change in federal regulations promises easier service of process on members with children when those members are stationed overseas.  On February 27, 1995, the President signed executive order 12953, 60 Fed. Reg. 11013 (1995), establishing the federal government as a "model employer" in promoting establishment and enforcement of child support.  The executive order now requires federal agencies and the uniformed services to designate officials who shall be responsible for facilitating service of legal process, regardless of the location of the members' duty station.  The process must be to establish paternity or enforce a child support obligation, including medical support orders.  A list of these officials must be published in the Federal Register by July 1, 1995.
     Utilizing more traditional service of process, the Convention, or the new federal regulations to obtain jurisdiction, the military dissolution case may appropriately proceed and garnishment of support awards is provided by law.⁹

2. Thou Shalt Proceed Without Personal Jurisdiction to Obtain Child and Spouse Support   
     •   In Rem Orders: Uniform Code of Military Justice
     Despite diligent efforts, in some cases one may not be able to accomplish service by foreign authority, military authority, or court-appointed process.  In that event, provided subject-matter jurisdiction and long-arm jurisdiction exist in that Florida is the matrimonial domicile or residence of the respondent,¹⁰ one may proceed after publication and issuance of notice of action to obtain the appropriate in rem orders, subject to personal enforcement when the active duty member may be personally served,¹¹ or against the respondent's real property or other assets within the State of Florida specifically described in the notice.¹²   One may also serve the in rem order by certified mail on the active duty member's commanding officer, pointing out that in the U.S. military failure to support dependents constitutes "service-discrediting" misconduct.  Under military regulations, the service member must then be counselled regarding his or her obligations and informed that administrative discharge proceedings may be initiated if such service-discrediting conduct continues.¹³
     •   In Rem Support Orders: Involuntary Allotments 
     Although letters to the active duty member's commanding officer are extraordinarily effective, in the current climate of defense draw-downs and general reduction in forces, there is good reason to exercise restraint in taking action that could jeopardize family income and assets.  In many cases, obtaining an involuntary allotment  may be a better solution.  The basic requirement for such an allotment is a state court support order and an arrearage equal to or exceeding the support required for a two-month period.¹⁴  If your client is seeking only alimony, involuntary allotment is not available.  If the client needs alimony and child support, involuntary allotment is available and preferable to garnishment because the definition of "disposable earnings" includes basic pay, basic allowance for quarters, basic allowance for subsistence, sea pay, special pay, and other allowances.  These allowances are not included within the definition of "remuneration for employment" utilized by the federal garnishment statute.¹⁵  The order is sent to the military finance center¹⁶ stating that the requisite arrearage exists and requesting that a "mandatory allotment" be started.  The finance center notifies the member's commander  and the member concerning the request.  Absent presentation of an adequate defense by the member, an involuntary allotment is started.¹⁷  Arrearages may be collected in a similar fashion.  The maximum amount of the allotment is generally 60 percent of disposable earnings or 50 percent if the member is supporting other family members, inclusive of allowances.  Utilizing involuntary allotments thus increases the net monthly support amounts received by your client, avoiding the need in many cases for the extraordinary remedy of contempt.

3.  Thou Shalt Penetrate the Soldier's and Sailor's Civil Relief Act
     The mere mention of the "act" is enough to make most attorneys cringe.¹⁸  Under the act, the petitioner is often responsible for seeking the appointment of an attorney for one's legal adversary.  The act protects the service person only when active service "materially prejudices" the ability of the member to make a defense and requires a discretionary ruling on the part of the trial judge.  Since the member's leave and earnings statement and other financial information may be faxed or delivered to the court, and is a matter of public record,¹⁹ there would seem to be little prejudice at a temporary hearing resulting from the member's absence.  In addition, a key factor in determining prejudice is the member's good faith, and noncompliance with agreements or orders related to family responsibilities is presumptive evidence of bad faith.²⁰ 
     Successful implementation of the act often requires volunteers to make themselves available to act as attorney ad litem for the absent service member who has not filed a written response to the action or who has demanded appointment of counsel.  Since there is no basis for the attorney ad litem to demand fees directly from the member, the best approach is for the petitioner to pay the attorney ad litem and request a fee award under F.S. Ann.  §61.16 (Supp. 1994), including within the request for fees the demand for reimbursement of the attorney ad litem's fee.  Such an order is enforceable by garnishment if properly worded, provided personal jurisdiction over the absent service member exists.²¹  There is some authority to tax the attorney ad litem's fees as costs in the action in the name of the attorney ad litem.²² However, this approach presents enforcement problems because the statute and regulations allow garnishment only of attorneys' fees related to the obtaining of child support and alimony.²³

4.  Thou Shalt Split the Military Pension 
     In a long-term marriage involving years of active duty service, the pension is often the major asset of the marriage.  Senior enlisted personnel frequently retire in their forties after 20 years' active service and receive a lifetime pension of one half their basic pay.²⁴  Not including general or flag ranks, payments range anywhere from about $1,200 to several thousand dollars per month.  Given a 40-year life expectancy after retirement, a military pension asset can be worth from $590,000 to more than $2 million, not reduced to present value and not including cost of living or inflation increases.²⁵  The client is usually entitled to equitable distribution of this asset  under the Former Spouse Protection Act (a/k/a Former Spouse Victim Act) and F.S. Ann. §61.076 (Supp. 1994).²⁶ 
     However, special federal jurisdictional rules apply to split a military pension.  Personal jurisdiction of the service person based on residence other than by military assignment, based on domicile, or by consent is essential.²⁷  Under no circumstances should a default be taken against an out-of-state active duty military member followed by entry of final judgment. 
     Omitting the pension as an asset or erroneously distributing it could have equally disastrous results. 
     Assuming proper personal and subject matter jurisdiction exist, ordinarily it is preferable to treat the military pension as an asset of the marriage, rather than as a source of support.  It should not be treated simultaneously as both.²⁸  If the pension is treated as a source of support, and permanent periodic alimony is awarded, the benefit would terminate upon remarriage.²⁹  If awarded as property, the nonmilitary spouse continues to receive the pension benefit even though he or she may have remarried.  In fact, it is theoretically possible for a young man or woman to marry more than once and receive distribution of more than one military pension.  Obtaining distribution of the pension as property also eliminates enforcement problems because the nonmilitary spouse receives the distribution monthly, direct from Defense Finance. 
     Effective January 1, 1992, Defense Finance and Accounting Service must withhold federal income tax on amounts payable to the former spouse as a division of retired pay.  Form 1099-R is utilized for reporting, treating the pension distribution payments as if they were payments of an annuity under an employer deferred compensation plan for withholding purposes.³⁰
     A final judgment distributing a military pension in the case of an active duty member must certify that the Soldier's and Sailor's Civil Relief Act of 1940, as amended, was complied with.³¹  Also, in order to split a military retirement pension at the source, the parties must have been married for 10 years, during which time the service member was on active duty earning retirement point credits, and this fact must be certified in the judgment or by separate documentation.³²  The mechanics of the pension split involve preparing the final judgment in proper form and completing DD Form 2293, February 1991, entitled "Application for Former Spouse Payments From Retired Pay" and forwarding the documents by certified mail to Defense Finance.
     In the event one cannot meet the 10-year rule, it is still possible to split the pension as marital property.  However, enforcement may be a problem since payments cannot be obtained directly from Defense Finance under federal law and regulations.³³
In the event of the bankruptcy of a retired member, at least one case holds that he or she retains the retirement proceeds as constructive trustee for the party entitled thereto.³⁴   However, the retired member may be out of the country or planning an overseas retirement.  In light of that possibility, the final judgment could reserve jurisdiction over the issue of permanent alimony and, given the broad jurisdiction of equity courts, later award the nonmilitary spouse alimony if his or her pension rights were frustrated by an overseas move and support was needed.³⁵

5.  Thou Shalt Insure the Military Pension
     As noted above, military pension benefits are frequently the largest asset in the military dissolution of marriage case.   As the population ages, many military pensioners will die and, unless insured, valuable pension benefits for both spouses lapse.  Failing to advise the client to obtain appropriate insurance is likely legal malpractice in a case involving a long-term military marriage.³⁶   
     Oddly, there is a general reluctance on the part of the judiciary to order appropriate insurance benefits to secure pension interests even where life insurance has been canceled shortly before the initiation of divorce proceedings.  Unlike life insurance to secure child support,³⁷ or health insurance benefits for children,³⁸ ordering life insurance to secure alimony or pension benefits is discretionary, subject to review for abuse of discretion.³⁹  Therefore, the burden is on the practitioner to explain to the court the insurance benefits available, the costs, who should pay, and why insurance is considered essential in a particular case.
•   Private Life Policies
     A common occurrence is that private insurance has been maintained for many years, insuring the life of the military member and naming the spouse as beneficiary.  In that instance, the solvency of the insurance company, cost of premiums, ability to cancel, and enforceability of the order are all relevant considerations. 
     Payment of the premium annually by the beneficiary spouse may be the only way realistically to  maintain the benefit.  Very few clients are willing to undergo the expense, uncertainty, and bureaucratic difficulty of these procedures and the former spouse usually cannot be relied upon, even under court order, to maintain the policy.  Accordingly, as a practical matter, private life policies are usually an inefficient and unreliable vehicle to secure the military pension.
•   Serviceman's Group Life Insurance (SGLI)
     Sanctioned by federal law and regulations,⁴⁰ SGLI typically provides either $100,000 or $200,000 of life insurance benefits for the service person's designated beneficiary.⁴¹  The service person may name his or her parents, children, spouse or former spouse, or others as beneficiaries.  The cost is typically quite reasonable, about $200 per year for the $200,000 policy provided by Prudential Insurance Company of America and administered by the office of Serviceman's Group Life Insurance in Newark, New Jersey.  Since nearly all active duty service persons carry SGLI, on the surface SGLI appears to be an ideal method of providing insurance benefits to secure at least part of the military pension or to provide for the former spouse or children of the service member.
•   Survivor Benefit Plan (SBP)
     Survivor Benefit Plan is available to active duty members.  Also, every few years "open enrollment" for retired members has become available.⁴²  In 1986, Congress amended the SBP statute, largely curing the beneficiary designation problems that exist in the SGLI arena.⁴³  It is now possible for divorcing parties to enter into marital settlement agreements to provide for an annuity to the surviving spouse in the event of the service member's death.  Such agreements, by federal statute, may be approved by state courts and orders may be entered sufficient to bind the service member and Defense Finance to provide the annuity.  Benefits may be paid to the surviving widow or widower, surviving dependent children, former spouses, or other natural persons.⁴⁴  Significantly, a court may order a person to elect SBP to provide an annuity to a former spouse or to both a former spouse and a child.   
     The downside to SBP is that premiums are somewhat expensive.  At this writing, assuming a total pension benefit before equitable distribution of $3,000 per month, the SBP annuity would be $1,650 per month for a monthly premium paid during the service member's life of $195 until⁴⁵ age 62.  After age 62, the SBP annuity would drop to $1,050.
     The SBP premium is financed automatically by both spouses in the insured retirement split situation because the Former Spouse Protection Act deducts SBP premium from gross pay in arriving at net disposable pay.  Net disposable retirement pay is the amount subject to equitable distribution. There is a certain equity in requiring both spouses to finance SBP, given the expense; it tests the beneficiary spouse's need and desire for the insurance, and in what amount. Various manipulations are possible to make one side pay all or none of the premium but in most cases it seems fair  simply to let the statute make the allocation.  Since the SBP program is backed by the federal government, counsel may advise, cautiously, that the program is more solvent than a private insurance company.

    ¹  Davis v. Diejuste, 496 So. 2d 806 (Fla. 1986); FLA. STAT. ANN. §48.031 (West 1994).
     ²  MANUAL OF THE JUDGE ADVOCATE GENERAL §0616(a) (1990).
     ³  Id. at §0616(a)(2).
     ⁴  Id. at §0616(a).
     ⁵  Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, May 1, 1989, 20 UST 361, reprinted in TIAS 6638 Martindale-Hubbell Law Digest, "Selected International Conventions" (1994) (hereinafter convention).
     ⁶  Id.
     ⁷  Semet Lickstein Morgenstern Berger Friend Brooke & Gordon, P.A. v. Sawada, 643 So. 2d 1189 (Fla. 3d D.C.A. 1994).
     ⁸  Convention, supra note 5.
    ⁹  42 U.S.C.A. §665 (West 1991) re child support/alimony; 15 U.S.C.A. 1673(b) (West 1982) sets garnishment limitations for support orders at 50 percent of weekly disposable earnings when the payor is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), otherwise at 60 percent of weekly disposable earnings.
     ¹⁰  FLA. STAT. ANN. §48.193(1)(c) (West 1994).
     ¹¹  Pestana v. Pestana, 486 So. 2d 666 (Fla. 1st D.C.A. 1986).
        ¹²  Whigham v. Whigham, 464 So. 2d 674 (Fla. 5th D.C.A. 1985).
    ¹³  UNIFORM CODE OF MILITARY JUSTICE, Art. 134, 10 U.S.C.A. §934 (West 1983); Air Force--32 C.F.R. Part 818 (1994); Marine Corps.--32 C.F.R. Part 733 (1994); Navy--32 C.F.R. Part 733 (1994); Army--32 C.F.R. Part 584 (1994); Coast Guard--PERSONNEL MANUAL, Ch. 13, Art. 8, §G.
    ¹⁴  42 U.S.C.A. §665 (West 1991); 33 C.F.R. Part 54 (1991).
    ¹⁵  42 U.S.C.A. §§659-662 (West 1991).
    ¹⁶  Army--Defense Finance & Accounting Service, Indianapolis Center, Attn: FINCP-BD, Indianapolis, IN 46249-0001, 1-800-428-2290, (317)542-2900 (Collect); Navy--Defense Finance and Accounting Service, Cleveland Center, A.J. Celebrezze Federal Bldg., Cleveland, OH  44199-2055, 1-800-321-1080, (216)522-5955 (Collect); Air Force--DFAS--Denver Center/AJCD, Denver, CO  80279-5000, 1-800-525-0104, (303)676-7051; Marine Corps--Commandant of the Marine Corps, Attn: Code MHP-20, Washington, D.C. 20380, (703)696-2055;  Source: Uniformed Services Almanac, Inc., 1994 UNIFORMED SERVICES ALMANAC at 47-48 (36th annual ed. 1994) (for active duty personnel).
   ¹⁷  42 U.S.C.A. §665 (West 1991); 32 C.F.R. Part 54 (1993).  It should be acknowledged that lack of personal jurisdiction is a partial defense because of the due process requirements of the involuntary allotment statute.  However, since the military will not act as a haven for persons seeking to avoid family obligations, the defense is administratively disfavored.
   ¹⁸  Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A. App. §§501-593 (West 1990 & Supp. 1994).
   ¹⁹  37 U.S.C.A.  §203 (West 1988 & Supp. 1994).
   ²⁰  Swartz v. Swartz, 412 So. 2d 461 (Fla. 2d D.C.A. 1982).
   ²¹  42 U.S.C.A. §659 (West 1991); note requirements that attorney fee be child support or alimony.
   ²²  Weynberg v. Downey, 25 N.Y.S. 2d 600 (S. Ct. Kings County 1941), In Re: Cool's Estate, 19 N.J. Misc. 714, (Orphan's Court, Warren County, 1941).
   ²³  42 U.S.C.A. §659 (West 1991); Murray v. Murray, 558 F.2d 1340 (8th Cir. 1977); Compliance with Legal Process Requiring the Payment of Attorney Fees, Interest, and/or Court Costs, 5 C.F.R. §581.307(1994); Definitions, "child support," "alimony," 5 C.F.R. §581.102(d), (e) (1994).
   ²⁴  10 U.S.C.A. §6323 (West 1959 & Supp. 1994); 10 U.S.C.A. §1406(d) (West Supp. 1994); 10 U.S.C.A. §1409(b) (West Supp. 1994).
    ²⁵  NAVY TIMES, Nov. 21, 1994.
   ²⁶  Frank W. Ault & Marsha L. Thole, DIVORCE AND THE MILITARY, at 41-42 (1994); 32 C.F.R. Ch. I §§63.1-63.6 (1986).
    ²⁷  10 U.S.C.A. §1408(c)(4) (West Supp. 1994).
    ²⁸  Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986).
    ²⁹  Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980).
   ³⁰  10 U.S.C.A. §1408(a)(4) (West Supp. 1994) defines "disposable retired pay" as gross pay less certain deductions such as debts owed the U.S. government, Survivor Benefit Plan premium, or disability offset; note that the amended statute does not deduct federal taxes in arriving at disposable retired pay correcting previous allocation problems; Internal Revenue Service Private Letter dated Oct. 9, 1991, addressed to John P. Springett, Principal Deputy Director, Defense Finance and Accounting Service, Washington, D.C. 20376-5001.
    ³¹  FLA. STAT. ANN. §61.076 (West Supp. 1994).
    ³²  FLA. STAT. ANN. §61.076 (West Supp. 1994).
   ³³  10 U.S.C.A. §1408 (West Supp. 1994); DeLoach v. DeLoach, 590 So. 2d 956, 968 n.8 (Fla. 1st D.C.A. 1991).
   ³⁴  Connor v. Connor, 610 So. 2d 488 (Fla. 5th D.C.A. 1992).
   ³⁵  Wood v. Wood, 359 So. 2d 23 (Fla. 3d D.C.A. 1978); Brown v. Brown, 338 So. 2d 916 (Fla. 2d D.C.A. 1976); West v. West, 414 So. 2d 189 (Fla. 1982); Moore v. Moore, 401 So. 2d 841 (Fla. 5th D.C.A. 1981).
   ³⁶  Annotation, Divorce: Provision in Decree that One Party Obtain or Maintain Life Insurance for Benefit of Other Party or Child, 59 ALR3d 9 (1974 & Supp. 1994); 44 AM. JUR. POF 2d 377, Legal Malpractice in Domestic Relations, §31 (1986).
    ³⁷  FLA. STAT. ANN. §61.13(1)(c) (West Supp. 1994).
  ³⁸  FLA. STAT. ANN. §61.13(1)(b) (West Supp. 1994); See also Sobelman v. Sobelman, 541 So. 2d 1153 (Fla. 1989).
    ³⁹  Gepfrich v. Gepfrich, 510 So. 2d 369, 371 (Fla. 4th D.C.A. 1987).
    ⁴⁰  38 U.S.C.A. §1966 (West 1991).
    ⁴¹  38 U.S.C.A. §1967 (West 1991 & Supp. 1994).
    ⁴²  10 U.S.C.A. §1448 note on history, ancillary laws, and directives (West Supp. 1986).
    ⁴³  10 U.S.C.A. §§1447-1455 (West 1983 & Supp. 1994).
    ⁴⁴  10 U.S.C.A. §1450 (West 1983 & Supp. 1994).
   ⁴⁵  Uniformed Services Almanac, Inc., 1994 RETIRED MILITARY ALMANAC at 204 (17th annual ed. 1994).