Hernsberger QDRO Law - October 2019
October 2019
QDRO Law Experts for Your Law Firm
The 10/10 Rule in Military Retirement
“If the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member’s eligibility for retired pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired pay of the member as property of the member or property of the member and his spouse.” 10 U.S.C. § 1408(d)(2)
• Were the parties married for at least 10 years during which the service member served at least 10 years? If no, STOP.
If you answered “no” to any of the three questions, DFAS will not honor a court order to pay the former spouse’s portion directly.
Myths of the 10/10 Rule in Military Retirement
Let’s explore a couple of myths that have arisen as a result of misunderstanding the 10/10 rule.
The 10/10 Checklist
Myth No. 1: If the parties don’t satisfy the 10/10 rule, the court cannot award the former spouse a portion of the military retirement.
This statute establishes what is known as the 10/10 rule. In order for the Defense Finance and Accounting Services (DFAS) to pay the former spouse’s portion directly to the former spouse, the service member must have served at least 10 years, during which time of service the parties must have been married for at least 10 years.
False. As with all marital assets, the divorce court has the exclusive right to divide military retirement. The 10/10 rule only applies to the obligation of DFAS to pay the former spouse’s portion directly to the former spouse. If the court awards a portion of military retirement to a former spouse that does not satisfy the 10/10 rule, the former spouse can still enforce the award in numerous ways. For example, the Texas Family Code section 9.011 creates a fiduciary duty on the service member in favor of the former spouse. The section also imposes a constructive trust on each payment the service member receives.
Here’s a simple checklist to determine whether the 10/10 rule has been satisfied:
• Were the parties married for at least 10 years? If no, STOP.
Myth No. 2: If the parties don’t satisfy the 10/10 rule, the court cannot award the former spouse survivor benefit.
• Did the service member serve at least 10 years? If no, STOP.
False. The service member may elect to cover the former spouse pursuant to the Survivor’s Benefit Plan (SBP). The 10/10 rule does not apply to the election of SBP coverage for the former spouse.
More significantly, the court can order the service member to elect the spouse for SBP coverage even if the marriage does not satisfy the 10/10 rule.
Most significantly, the former spouse can file a form with DFAS that acts as a “deemed election” even if the service member does not make the election directly.
The correct form to file with DFAS is the DD 2656-10 form. The form must be filed within one year after the court first awards the survivor benefit to the former spouse.
–Judge Stephen Hernsberger
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AWoman’s Guide to Corporate Success While Mireille Guiliano is best known for “French Women Don’t Get Fat,” her book on healthy eating and balanced living, authorship is actually her second you’ll find advice on being happy and living a good life, even while you are making the biggest contribution
‘Women, Work & the Art of Savoir Faire: Business Sense & Sensibility’
you can to the workplace. That’s why I dare to talk about style, and clothes, and food, and wine, and entertaining, and LIFE in a business book. We don’t work in a vacuum.” Guiliano is true to her word. Between the covers, readers will find advice on topics as far-ranging as developing the perfect handshake, choosing catering for a business dinner, dressing for success, and putting together an effective presentation. Guiliano has plenty of experience to back up her counsel and shares amusing anecdotes about the food and beverage industry, French culture, and her own journey along the way. There are no easy three-step solutions here, only long-term goals and strategies. What really makes “Women, Work & the Art of Savoir Faire” unique is that it caters specifically to women in pursuit of high-powered CEO or CFO jobs. Guiliano covers circumventing prejudice right alongside choosing a dress and tips on being the perfect lunch date. Still, both men and women will come away from this book with ideas about how to achieve success without sacrificing the pleasures French women hold so dear.
career. Before she took up the pen, Guiliano was president and CEO of the French Champagne brand Veuve Clicquot. She developed Veuve Clicquot’s reputation in America almost single-handedly over a 20-plus year career, and now she has chronicled that success in her 2010 bestseller “Women, Work & the Art of Savoir Faire: Business Sense & Sensibility” — a guide to climbing the corporate ladder geared specifically toward women. Just as “French Women Don’t Get Fat” upended the typical diet book format, “Women, Work & the Art of Savoir Faire” leaves the usual business book style behind almost immediately. As Guiliano writes in her introduction, “This isn’t another business book that tells you how
to ‘succeed’ or ‘get the corner office.’ Yes, of
course, you’ll find advice on getting ahead and getting promoted … but more than that,
QDRO Case Studies:
How I Learned to Distrust the Texas Family Law Practice Manual
Jerrod Brownell retired as an E-6 from the United States Army in 2008 after 20 years of service. Jerrod and Emily were married in 1998 and divorced in 2006. It was not a 10/10 marriage. At the entry hearing, the attorneys disagreed as to which proper terms should be included in the QDRO. (Note: A court order dividing military retirement is not called a QDRO. However, I use that term in its generic sense to apply to the order in this case). The judge listened to the arguments of both attorneys and then issued a ruling that the wife’s attorney would prepare a QDRO that strictly adhered to the Texas Family Law Practice Manual. Both attorneys reviewed the form for military retirement and were surprised when they repeatedly found contradicting language that was preceded by “Use the following language when representing service member” quickly followed by “Use the following language when representing former spouse.”
Both attorneys were also surprised to see so many gratuitous clauses in the form that were never ordered by the court. For example, the service member was prospectively ordered to effect a “voluntary allotment” to the former spouse in contravention of the federal statute and without compliance with Texas laws of garnishment and due process. The attorneys returned to inform the court that it was quite impossible to comply with his ruling because of the conflicting and sometimes unlawful language found in the Family Law Practice Manual. The issue was resolved when the attorneys hired Hernsberger QDRO Law to mediate the terms and draft the final QDRO.
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SUDOKU
Understanding VA Disability and Military Retirement
Historically, if a retired service member also received VA disability payment, the member’s retirement pay was reduced dollar for dollar by the amount of the disability pay.
The disability pay is not taxable, and it is the service member’s separate property.
This arrangement puts a hardship on the former spouse. For example, assume the former spouse was awarded 50% of the service member’s $1,000 per month retirement. As a result, they would receive $500 per month. What happens if the service member receives a 50% disability rating? The service member will begin receiving $500 directly from the VA and $500 from retirement. The former spouse will receive none of the VA disability because it is the service member’s separate property. The former spouse will continue to receive 50% of the retirement. But now the retirement is only $500. So, the former spouse’s monthly portion will shrink from $500 to $400. Congress passed a law that allows concurrent receipt of military retirement and VA disability if the service member’s disability rating is 50% or higher. In other words, there is no offset. The service member receives all of the military retirement and all of the VA disability payments.
Be Inspired
The good news for former spouses is that their award of military retirement is not reduced if the service member receives VA disability as long as the disability rating is 50% or higher.
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INSIDE This Issue
A Rule All Military Couples Need to Know PAGE 1 Tips for Women Climbing the Business Ladder A Look at a Case: Distrusting the Texas Family Law Practice
Manual PAGE 2 VA Disability and Military Retirement PAGE 3 Grave Matters of the Law PAGE 4
Halloween Decorations or Fighting Words? A GRAVE LEGAL MATTER
We’ve all played a harmless trick or two, but sometimes, Halloween shenanigans get out of hand. They can lead to hurt feelings, outraged neighbors, and, in the case of Purtell v. Mason, a lawsuit. In the days leading up to Halloween, all was not quiet in the village of Bloomingdale. Previously parked in a storage unit, Jeff and Vicki Purtell’s 38-foot RVwas now parked in front of their house. In protest, neighbors petitioned to town officials, wanting an ordinance put in place to prohibit RV parking on residential property.
Insulted and a little afraid, Purtell’s neighbors called the police to have the headstones removed. After a couple of visits, Officer Bruce Mason arrived and threatened to arrest Purtell if he didn’t take the tombstones down. Purtell obliged, but the matter wasn’t put to rest.
The Verdict
Purtell sued Officer Mason on the grounds of violating his rights to free speech, and the case made it all the way to the 7th U.S. Circuit Court of Appeals. Judge Sykes ruled that the tombstones did not constitute fighting words and were protected under the First Amendment. However, she also ruled that Officer Mason was entitled to qualified immunity, as any reasonable officer would act the same under the circumstances. The bigger question might be how this case made it all the way to the U.S. Court of Appeals. As Judge Sykes wrote in her opinion, “Lawsuits like this one cast the legal profession in a bad light and contribute to the impression that Americans are an overlawyered and excessively litigious people.”
While the ordinance was under consideration, Jeff Purtell took matters into his own hands. He erected six wooden tombstones in his front yard. They seemed to be innocuous Halloween decorations, but these tombstones displayed a special message for the neighbors. Each headstone was inscribed with a sarcastic message and house number, implying the occupants’ death dates. These messages soon caught the neighbors’ attention.
“Bette wasn’t ready, but here she lies, ever since that night she died. Twelve feet deep in this trench, still wasn’t deep enough for that stench! 1690.”
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