In Florida, can a Military Officer Swear in a Witness who is Appearing by Phone?

Florida is home to several significant military bases, and the state has a large military population.  As a result, Florida sees a large number of military divorces, family law cases, and other proceedings.  In civil and family law matters, servicemembers are frequently deployed overseas and are not available to testify in person at court hearings.  An experienced military divorce lawyer can help if you have questions about your right or obligation to participate in court proceedings.

In a military divorce or other family case, a servicemember may need to proceed in court, even though he or she is deployed or stationed overseas.  Although the servicemember may be able to seek a continuance of the hearing based on his or her unavailability or a stay of the proceedings under the Servicemembers Civil Relief Act, the servicemember may be the party seeking to advance the case, such as a family law enforcement proceeding, contempt action, or child support modification case.  So, it may be in the servicemember's interest to ask for permission to appear by phone or Skype and have the hearing go forward.

Telephonic appearances in Florida courts are governed by Florida Rule of Civil Procedure 1.451, Florida Family Law Rule of Procedure 12.451, Florida Rule of Judicial Administration 2.530, and Sections 92.50 and 92.51 of the Florida Evidence Code.

Rules 1.451 and 12.451 require that a notary or "other person authorized to administer the oath" swear in every witness who is not appearing in person.  Most people just have a notary physically present with the witness to administer the oath prior to the witness testifying.

For military servicemembers on deployment, however, finding a qualified notary may be a nearly impossible task.  There are no locally authorized notaries, for example, in the mountains of Afghanistan.  Under Section 92.51, Florida Statutes, military officers (O1 and higher) are expressly authorized to administer oaths to service members and their spouses under certain circumstances.

If your military divorce attorney knows this law, you will be better able to control when and how hearings proceed in your case.

Survivors Benefit Plan: Is the SBP the Best Way to Insure Your Interest in Your Former Spouse's Military Retirement?

The Survivor Benefit Plan ("SBP"), Reserve Component Survivor Benefit Plan ("RC-SBP"), and Retired Serviceman's Family Protection Plan ("RSFPP") provide military servicemembers with the opportunity to purchase an annuity that pays a defined benefit to certain eligible beneficiaries upon the death of the servicemember.  The annuity pays a percentage of the servicemember's retirement pay on a monthly basis for the lifetime of the beneficiary.   

Upon death, the servicemember's right to receive military retirement pay terminates.  The annuity is a form of insurance that provides coverage in the event that the servicemember predeceases the beneficiary.  This coverage can provide an eligible beneficiary with up to 55% of the servicemember's monthly military retirement pay.

Although there is no cost associated with SBP during active duty service, SBP coverage comes at a premium after retirement.  SBP coverage for a retirement pay annuity can cost as much as 6.5% of the servicember's gross retired pay.  Fortunately, the SBP premium is deducted from retirement pay on a pre-tax basis.  In other words, the servicemember is not taxed on the portion of his or her income used to pay the SBP premium.  

Once a beneficiary starts receiving SBP annuity payments, the payments are adjusted each year based on the Consumer Price Index. This is known as a Cost of Living Adjustment or "COLA."  According to the Defense Finance and Accounting Service, to "earn an even return on your investment, your beneficiary typically must receive payment for seven months for every five years you pay SBP premiums."

Subject to certain exceptions, the servicemember must elect SBP coverage at the time of retirement.   This is done using DD Form 2656, Data for Payment of Retired Personnel, which includes the SBP election. Although the servicemember's SBP election is frequently irrevocable, there are circumstances where a servicemember can change his or her SBP election.  

If you are a military servicemember going through a divorce, chances are that your former spouse will demand a share of your military retirement.  And, chances are the former spouse will also demand that you make an SBP election with the former spouse as the exclusive beneficiary.  

During the divorce, the spouse should consult a military divorce attorney to understand whether the Survivor Benefit Plan is the best means to insure the spouse's interest in the service member's military retirement.  For example, many attorneys that practice military divorce will automatically demand that the servicemember elect to use the Survivor Benefit Plan ("SBP") to secure the spouse's interest in the military retirement.  

In some cases, the attorney will demand SBP coverage even when it makes absolutely no sense.  Absent a reimbursement mechanism, the cost of SBP coverage is necessarily shared on a pro-rata basis between the servicemember and former spouse.  This is because the former spouse only has a right to receive a share of the servicemember's disposable retired pay.  See 10 U.S.C. § 1408.  And, many supposed military divorce attorneys do not even know that a former spouse who remarries before she reaches age of 55 is not an eligible beneficiary under the Survivor Benefit Plan.  See 10 U.S.C. § 1450(b)(2).  In other words, a former spouse with plans to remarry may end up financing an insurance policy that will never pay her a dime.  

Inexperienced attorneys will pound the table demanding this expensive insurance, the benefit of which may ironically go to the servicemember's new spouse if the former spouse remarries.  How many clients would be excited to buy insurance only to find that they will receive no benefit if they remarry?  A competent military divorce attorney should ask the spouse whether he or she is likely to remarry or has plans to remarry (some spouse's have already selected their new partner before the divorce is even finalized).  If the spouse has plans to remarry, then a life insurance policy is probably a much better option than SBP coverage.

If you are a former spouse and the court orders that the servicemember insure your interest in the retirement using SBP, make sure that you file the appropriate forms with DFAS to make a deemed SBP election.  An experienced military divorce attorney representing a servicemember's spouse will always advise the spouse to file the SBP Request for Deemed Election with DFAS.  Do not trust the servicemember to do this.  If the former spouse does not make this election within one year of the date of the court order dividing the military retirement, the right to SBP coverage may be forever waived.

Honorable Discharge: Can I Get Out of the Military and Get More Time with My Children?

As a military divorce attorney, several servicemembers have asked me whether getting out of the military will allow them to spend more time with their children.  This is often a complicated question because it implicates a variety of support and child custody issues.

Under Florida law, if there is a final judgment in place that establishes a time-sharing or visitation schedule, that schedule cannot be modified unless the other parent consents or the party seeking a modification is able to demonstrate a "substantial change in circumstances."

A party seeking modification of a final judgment actually carries the "extraordinary burden" of proving both (a) that there has been a substantial and material change in circumstances, and (b) that the best interests of the child will be promoted by the requested modification.  See Wade v. Hirschman, 903 So. 2d 928, 933 (Fla. 2005).

The parent seeking the change must also establish that the alleged change in circumstances was unanticipated at the time of the Final Judgment.  See Ogilvie v. Ogilvie, 954 So. 2d 698, 702 (Fla. 1st DCA 2007); see also Mesibov v. Mesibov, 16 So. 3d 890, 892 (Fla. 5th DCA 2009) (holding that “the substantial and material change must be one that was not reasonably contemplated at the time of the original judgment”).

The “substantial change” test applies to all requests for modification of all custody decrees, regardless of whether the parents agreed to the initial schedule or it was the result of an adversarial hearing.  See Bazan v. Gambone, 924 So. 2d 952, 955-56 (Fla. 3d DCA 2006).

Florida courts have recognized that changes to a parent’s employment may constitute a substantial change in circumstances for purposes of modifying the parenting schedule.  See, e.g., Shaw v. Nelson, 4 So. 3d 740 (Fla. 1st DCA 2009) (former husband’s new employment as a boat captain constituted a substantial change in circumstances for purposes of modifying time-sharing).

For those considering getting out of the military, Florida courts have specifically recognized that termination of active duty military service may support a modification of a custody determination.  See Purdon v. Purdon, 529 So. 2d 334, 334 (Fla. 1st DCA 1988) (court permitted modification where former husband completed his military service commitment as a flight surgeon and started practicing medicine as a civilian).

For purposes of modifying child custody, visitation, or time-sharing, there is no requirement that the change in circumstances be “involuntary.”  See Fazzini v. Davis, 98 So. 3d 98 (Fla. 2d DCA 2012) (adding voluntariness as a “fourth factor to modification of a time-sharing judgment” is not supported by the statute or case law).

Conversely, if the discharge from the military is voluntary, the servicemember may not be able to achieve a downward modification of alimony.  See Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992) (holding that alimony modification must be support by an unanticipated and substantial change in circumstances that is involuntary and permanent in nature).  If the discharge is due to retirement from the military, an alimony modification may or may not be available, depending on whether the retirement was reasonable under the circumstances.  See Pimm, 601 So. 2d at 537 ("In determining whether a voluntary retirement is reasonable, the court must consider the payor's age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire.").

As for the servicemember's child support obligation, the obligation to pay support to a former spouse is different from the obligation to pay child support.  See Pimm, 601 So. 2d at 537.  Voluntary retirement or relinquishment of employment can never be considered a change of circumstance that would warrant a modification of child support.  See Pimm, 601 So. 2d at 537; see also Overbey v. Overbey,  698 So. 2d 811 (Fla. 1997).

Interestingly, notwithstanding the case law strictly denying a child support modification where a servicemember voluntarily leaves the military, if the the servicemember applies for a modification and obtains additional time with the children, the servicemember could request a child support modification based on the change in time-sharing.

If you have a question about your legal rights under any of the foregoing circumstances, you should contact an experienced Florida military divorce attorney for a consultation.

When Duty Calls: Modification of Custody and Time-Sharing Due to Military Orders

Divorce is often particularly difficult for military families.  And, in most cases, the challenges do not end when the final judgment is entered.  Due to the demands of serving our country, military divorce cases often generate post-judgment modification cases.

When a divorced servicemember has minor children, military orders to a new duty station raise significant questions concerning how the move will impact each parent's relationship and time-sharing with the children.

Section 61.13(2)(c), Florida Statutes, grants the courts jurisdiction to modify the time-sharing and custody aspects of a final judgment.  The statute, however, does not expressly state the conditions necessary for modification.  Florida courts must therefore look to case law for guidance on how to make this determination.

A trial court’s authority and discretion in a modification proceeding is more restricted than at the time of the original custody determination.  See Clark v. Clark, 35 So. 3d 989, 991 (Fla. 1st DCA 2010).

A party seeking modification of a final judgment carries the extraordinary burden of proving (i) a substantial and material change in circumstances, and (ii) that the best interests of the child will be promoted by the requested modification.  See Wade v. Hirschman, 903 So. 2d 928, 933 (Fla. 2005).

Any alleged change in circumstances must also be unanticipated at the time of the Final Judgment.  See Ogilvie v. Ogilvie, 954 So. 2d 698, 702 (Fla. 1st DCA 2007); see also Mesibov v. Mesibov, 16 So. 3d 890, 892 (Fla. 5th DCA 2009) (holding that “the substantial and material change must be one that was not reasonably contemplated at the time of the original judgment”).

The “substantial change” test applies to all requests for modification of custody decrees, “including those adopted by a trial court pursuant to an agreement of the parties as well as those established after an adversarial hearing on the issue of custody.”  See Bazan v. Gambone, 924 So. 2d 952, 955-56 (Fla. 3d DCA 2006).

Under these authorities, when a servicemember is ordered to a new duty station, the servicemember will typically be able to demonstrate a substantial change in circumstances.  A possible exception would be the case where the final judgment was entered at a time when the servicemember knew about the prospective orders or change of duty station.

When an experienced military divorce attorney prepares a parenting plan for a servicemember, the attorney should discuss with the servicemember whether to include a long-distance time-sharing schedule to serve as a default if the servicemember moves out of the jurisdiction.  This time-sharing schedule may apply until such time that the court has an opportunity to establish a new time-sharing schedule.  One reasons this default schedule might be important is because Florida law does not favor temporary relief in post-judgment modification cases, except where there is an actual demonstrated emergency.  See Braswell v. Braswell,935 So. 2d 604, 606 (Fla. 3d DCA 2006); see also Smith v. Crider, 932 So. 2d 393, 398 (Fla. 2nd DCA 2006). This law means that a servicemember may have to wait until trial for modification.

The Final Judgment may also provide that a change of duty station will constitute a substantial change in circumstances notwithstanding the existence of the default long-distance time-sharing schedule.  Without this language, the local parent could argue that the move was "anticipated" by the final judgment.  But, the default long-distance time-sharing schedule may not appropriate due to the location of the new duty station.  For example, a servicemember stationed on a different continent would not need the same time-sharing schedule as a servicemember stationed only a few hours away.

Providing a default long-distance time-sharing schedule will allow the servicemember to keep the schedule if it works.  Including language regarding the modification will allow the servicemember (or the other parent) to still seek modification in the event that the default time-sharing schedule does not service the best interest of the children.

If you have questions concerning military relocation or military divorce in Florida, please contact a military divorce lawyer.

Changing Your SBP Coverage and Election

People are accustomed to routinely changing their election of benefits.  Most companies provide employees an opportunity to change their benefits at least once a year.  Employees also frequently have an opportunity to change your elections based on certain major life events, such as marriage, the birth of a child, or divorce.

If you are a military servicemember who is at or near retirement, you should be very careful when you make your election concerning coverage under the Survivor Benefits Plan ("SBP").  SBP is an annuity payable to certain eligible beneficiaries in the event the servicemember dies and is thus no longer eligible to receive military retired pay.  SBP has many advantages and disadvantages, which may or may not be right for everyone.  SBP allows eligible beneficiaries to receive up to 55% of the servicemember's retired pay.  SBP also comes at a cost:  SBP premiums may be as high as 6.5% of the Servicemember's retired pay for up to 30 years.

The SBP election is irrevocable, except as specifically provided by statute.  See 10 U.S.C. § 1448(a)(4)(D).  Retirees who waive SBP or elect coverage at less than the maximum amount typically have no right or ability to change that election.  This is true even if you go through a divorce.  For example, if you waived SBP at retirement, neither your spouse nor the divorce court can force you (or DFAS) to change that election.   This is somewhat fair, of course, because spousal consent is required for any waiver or reduced election.   See 10 U.S.C. § 1448(a)(3)(A).

Congress did provide some exceptions to the general rule that the SBP election is irrevocable.  If the beneficiary dies, coverage automatically terminates.  If you marry for the first time or have a first child after retirement, you can add the new family member as a beneficiary.  See 10 U.S.C. § 1448(a)(5)(A).  To make this election, submit DoD Form 2656-6 and supporting documentation to DFAS Retired and Annuitant Pay within one year of the qualifying event.  If you were married and elected coverage for your spouse at retirement, unless there is a court order to the contrary, you can notify DFAS at any time of your remarriage and a new spousal election will automatically begin effective one year after that marriage date.  See 10 U.S.C. § 1448(a)(5).  Spousal concurrence must be obtained to begin coverage at any level lower than the original spousal election.  If you were married at retirement and elected not to cover your spouse, you cannot ever cover a subsequent spouse.

During the third year of retirement (i.e., between months 25 and 36), a retiree may elect to cancel SBP coverage.  See 10 U.S.C. § 1448a(a).  To make this election, submit DoD Form 2656-2 to DFAS Retired and Annuitant Pay with spousal consent (if applicable).  In the event of a divorce, you are free to terminate your coverage unless the final judgment or decree requires you to maintain SBP coverage.  If you are already participating in the SBP and you agree to continue SBP coverage for you former spouse or the court directs you to do so, you or your former spouse must make the election within one year from the date of the final judgment or divorce decree.   See 10 U.S.C. § 1448(b)(3)(A).  To do so, you or your former spouse must submit DoD Form 2656-1.

If you do not qualify for any of the aforementioned exceptions and you would like to change your SBP election, your only hope is that Congress declares an "Open Season" for changing your SBP election.  The DFAS website indicates that the last time Congress authorized an Open Season was 2005.

If you have questions about dividing military retired pay in a divorce or other questions concerning military divorce, please contact a military divorce attorney.

Continuing Health Care Coverage for the Military Former Spouse

Healthcare is one of the more important issues in our society.  And, healthcare is frequently a very important issue in the military divorce case.  Many times, military spouses do not have access to their own healthcare coverage outside the marriage.

A military spouse is entitled to varying degrees of continuing healthcare coverage, depending on whether they meet certain criteria.  If you represent clients in military divorces, you should be aware of the options available to the former spouse.

A "20/20/20 former spouse" qualifies for lifetime continuing healthcare coverage if the service member served at least 20 years of active duty, the parties were married at least 20 years, and there was at least 20 years of overlap (i.e., the former spouse was married during 20 years of the servicemember's active duty service).  See 10 U.S.C. § 1072(2)(F)(i).  This coverage is not available if the former spouse remarries.  Id.  Nor is continuing coverage available if the former spouse has medical coverage under an employer-sponsored health plan.  See 10 U.S.C. § 1072(2)(F)(ii).

PRACTICE TIP:  The 20 years is not determined by date of filing.  It is determined by the date the final judgment or decree is entered.  So, if your client is on the verge of qualifying for 20/20/20 status, you should definitely advise the parties to consider waiting to have a final judgment entered.  Doing so could significantly reduce the former spouse's need for alimony.

A "20/20/15 former spouse" qualifies for one year of continuing healthcare coverage if the service member served at least 20 years of active duty, the parties were married at least 20 years, and there was at least 15 years of overlap (i.e., the former spouse was married during 15 years of the servicemember's active duty service).  See 10 U.S.C. § 1072(2)(G)(i).  This coverage is not available if the former spouse remarries.  Id.  Nor is continuing coverage available if the former spouse has medical coverage under an employer-sponsored health plan.  See 10 U.S.C. § 1072(2)(G)(ii).

If the former spouse does not qualify for continuing coverage under either of the foregoing plans, he or she may be eligible for coverage under the Continued Health Care Benefit Program ("CHCBP").  See 10 U.S.C. § 1078a.  This program is not the same as TRICARE.  Instead, it offers coverage similar to that available to insureds under more familiar programs such as COBRA.  CHCBP is available for former spouses who were entitled to medical and dental care through a qualified service member.  CHCBP provides guaranteed coverage, including coverage for any preexisting conditions.  So long as coverage was previously available to the former spouse, there is no minimum length of marriage or active duty service.    Transitional coverage for 36 months is available to any qualifying former spouse.  See 10 U.S.C. § 1078a(g)(1)(C).  And, unlimited coverage through CHCBP is available for former spouses who meet the following criteria:  (i) former spouse was not remarried prior to age 55; (ii) former spouse was enrolled in an approved healthcare plan at any time during the 18 months preceding the date of the final judgment of dissolution; and (iii) is actually receiving or entitled to receive (as evidenced by a court order or written agreement) a portion of the servicemember's retired pay or SBP annuity.  See 10 U.S.C. § 1078a(g)(4).  If a former spouse desires to participate in CHCBP, they must make an election within 60 days after their eligibility for TRICARE expires.  

PRACTICE TIP:  Remind former spouses about the 60-day window.  This could have a substantial impact on the client who misses deadline.  Also, If you negotiate a buyout of the former spouse's right to a share of the servicemember's retirement pay through alimony or additional equitable distribution (which is relatively common in shorter-term marriages), this may preclude the former spouse from qualifying for healthcare benefits.

To learn more about the Continued Health Care Benefit Program:

http://www.humana-military.com/south/bene/TRICAREPrograms/chcbp.asp

To review the Continued Health Care Benefit Program Handbook:

http://www.humana-military.com/CHCBP/handbooktoc.htm

For a more detailed legal discussion of the CHCBP:

http://meetings.abanet.org/webupload/commupload/FL115277/newsletterpubs/rc_sum08.pdf

If you have questions regarding these or other rights in a military divorce, contact an experienced Tampa military divorce attorney.

Do I have to pay child support if I receive disability payments from the government?

One common question is whether a parent has to pay child support if the children are receiving social security payments as a result of the parent's disability.

The short answer is that social security payments do not negate the obligation to pay child support.  A disabled parent, however, does receive credit for the social security paid for the benefit of the children.  In some cases, especially where the disabled parent has no other income, these payments may actually exceed the support obligation.  The fact of the matter is that, to make any determination, you should still have a Florida family law attorney or other qualified person apply the Florida child support guidelines, properly taking into account any social security benefits paid to the children.

Under the Florida child support guidelines, social security is treated as income for purposes of calculating the parents' child support obligation.  Specifically, under section 61.30(2)(a)(8), the social security benefits are treated as income to the disabled parent.  The disabled parent, however, also receives credit for paying support equal to the amount of the social security received on behalf of the children.  In other words, the social security funds are hypothetically earned by the disabled parent and paid by that parent to the children.

This rule was established by the First District Court of Appeals in Williams v. Williams, 560 So. 2d 308 (Fla. 1st DCA 1990).  In Williams, the trial court failed to credit a disabled father for social security payments received by the mother on behalf of their three children.  The court ordered that, in addition to the disability funds the mother received directly, the father also had to pay child support out of his own disability payments.  As a result, after satisfying his child support obligations, the father had no money from which to live.  The First District found that the court erred when calculating the child support guideline amount by failing properly to account for the social security payments received by the children.

In most cases, the social security payments will exceed the disabled parent's obligation to pay support.  This is especially true where the disabled parent has no other material income.