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.