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.

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.

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.

Military Divorce and Post 9/11 GI Bill Benefits

Everyone knows that a divorce typically involves dividing your marital assets.  In a military divorce, those assets frequently include the service member spouse’s military benefits, such as the right to military retirement pay, healthcare for the children, and even the value of the member spouse’s leave days accrued during the marriage.

One asset that is becoming a more frequent topic of discussion is the member spouse’s benefits under the Post 9/11 GI Bill.  This program provides up to 36 months of educational benefits, which may be used up to 15 years after the service member’s discharge from active duty.  If the service member meets the service requirements, this benefit may be transferred to a service member’s spouse or children.  See 38 U.S.C. § 3020.  The transfer can even be made online.

The Post 9/11 GI Bill is therefore a significant asset that can potentially benefit either spouse or their children.  Unlike leave pay and retirement pay, however, Post 9/11 GI Bill Benefits may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding.  See 38 U.S.C. § 3020(f)(3).  In other words, a military spouse cannot ask the court to award a service member’s Post 9/11 GI Bill benefits as an asset in a divorce.  The Post 9/11 GI Bill benefits simply cannot be included in equitable distribution.

A skillful military divorce attorney, however, will advise their client on how the Post 9/11 GI Bill benefits may be used to settle the divorce, including the spouse’s alimony claim.  Many times, a dependent spouse is seeking alimony in connection with the divorce, which may include a request for rehabilitative alimony.  As part of a marital settlement agreement, the service member may agree to transfer all or part of the service member’s educational benefits under the Post 9/11 GI Bill in exchange for a waiver of alimony.  If the service member seeks to transfer the benefits, the service member typically must agree to serve four additional years of active duty service.  See DoD Transferability Fact Sheet.  The transfer must also be made prior to the entry of a final judgment, as the transfer may only be made to a “spouse.”  A subsequent divorce, however, does not affect a transfer that has already occurred.  Both sides should be aware that, as a matter of federal law, the service member may revoke the transfer at any time while still serving on active duty or as a member of the Selected Reserve.  See 38 U.S.C. § 3020(f)(2).  Thus, the Final Judgment or Divorce Decree should prohibit the Service Member from revoking the transfer and provide for indemnification, payment of alimony, or another remedy should the service member do so.

If the service member transfers the benefit, the Post 9/11 GI Bill will provide tuition assistance for the recipient spouse, and subject to certain exceptions, it may also include a housing allowance, book stipend, and other benefits.  See Summary of Benefits.  The monthly housing allowance is equivalent to the Basic Allowance for Housing (BAH) for an E-5 with dependents, based on the ZIP code of the school where the student is physically enrolled (in Tampa, this is $1,662 per month).  You can check the BAH rate for any school using the Department of Defense BAH Calculator.  The housing allowance is not available if the service member continues to receive the Basic Allowance for Housing.  Notably, if the Post 9/11 GI Bill is transferred to a child, the child could receive the housing allowance and book stipend, even if the parent service member is still on active duty and receiving the Basic Allowance for Housing.  The apparent rationale is that a couple – even if they are no longer married – only qualifies for one housing allowance.

If you have questions about a military divorce, you should consult a military divorce attorney or family law attorney experienced in military divorce.

SGLI and Other Life Insurance to Secure Alimony and Child Support

If you are military service member or spouse facing a family law case, you should consider retaining an experienced military divorce attorney.

Federal law often governs how courts may allocate military pay and other benefits.  One example is the limit placed on the Service Members Group Life Insurance policy or "SGLI."

Clients often ask about whether the Court will require a party to procure life insurance to secure their alimony or child support obligation.  Like many legal questions, the answer is "it depends."

Courts do have the authority to order a party to provide term life insurance to secure his or her child support and alimony payments. See Fla. Stat. §§ 61.08(3), 61.13(1)(c); Sobelman v. Sobelman, 541 So. 2d 1153, 1154 (Fla. 1989). 

When determining whether life insurance is appropriate, the court will consider the need for the insurance, the cost and availability of the insurance, and the financial impact upon the obligor.  See Child v. Child, 34 So. 3d 159 (Fla. 3d DCA 2010); Plichta v. Plichta, 899 So. 2d 1283, 1287 (Fla. 2d DCA 2005).  See also Byers v. Byers, 910 So. 2d 336, 346 (Fla. 4th DCA 2005). 

Florida courts have held, however, that certain "special circumstances" must be present to require a payor to purchase life insurance on his or her alimony or child support obligation.  See Child v. Child, 34 So. 3d 159 (Fla. 3d DCA 2010); Massam v. Massam, 993 So. 2d 1022 (Fla. 2d DCA 2008); Melo v. Melo, 864 So.2d 1268 (Fla. 3d DCA 2004); Frechter v. Frechter, 548 So.2d 712 (Fla. 3d DCA 1989). 

But, the "special circumstances" are not particularly difficult to prove.  The special circumstances may be present where the former spouse would face difficult financial circumstances if the support payments were to cease upon the death of the obligor.  The circumstances may be present where the surviving party has limited earning capacity or children to support.  See, e.g., Child v. Child, 34 So. 3d 159 (Fla. 3d DCA 2010); Kotlarz v. Kotlarz, 21 So. 3d 892, 893 (Fla. 1st DCA 2009); Richardson v. Richardson, 900 So.2d 656, 661 (Fla. 2d DCA 2005); Massam v. Massam, 993 So. 2d 1022 (Fla. 2d DCA 2008);Davidson v. Davidson, 882 So. 2d 418 (Fla. 4th DCA 2004).

If the special circumstances are present, the Party requesting the life insurance must establish that the amount of insurance sought is available at an affordable cost.  See Massam, 993 So. 2d at 1022; Rubinstein v. Rubinstein, 866 So. 2d 80 (Fla. 3d DCA 2003); Zimmerman v. Zimmerman, 755 So. 2d 730 (Fla. 1st DCA 2000); and Schere v. Schere, 645 So. 2d 21 (Fla. 3d DCA 1994). 

It would seem that any military spouse could easily establish that SGLI is readily available for all service members at an affordable cost.  The United States Supreme Court, has held, however, that a state court may not order a service member to include his former spouse as a beneficiary of the SGLI policy.  See Ridgway v. Ridgway, 454 US 46 (1981).  This is true even if the Service Member signed a marital settlement agreement and agreed to include the former spouse as a beneficiary.  Accordingly, parties and practitioners alike should beware any order or agreement that makes specific reference to the SGLI.  The better approach is to request a general term life insurance policy in a designated amount, and the service member may choose to satisfy this requirement by making the SGLI beneficiary designation or purchasing term life insurance through a private insurer.

If you have questions about alimony or child support, please contact us to consult an experienced Tampa divorce and family law attorney.