Selecting an Attorney to Handle a Military Divorce
It is critical to have an attorney that is knowledgeable in the law, either as the primary counsel, or expert advisor to the divorce attorney. In my experience it is more important to focus on finding the best domestic relations attorney you can afford rather than focusing on finding one that is familiar with the USFSPA. There are many vital issues in a divorce beyond the division of the retirement. An expert advisor can fill in the gaps in knowledge concerning the USFSPA, but such an advisor cannot make a mediocre attorney into a superior practitioner.
In selecting an attorney one should not make the mistake of assuming that an attorney is knowledgeable about the USFSPA just because he or she is a retired officer or judge advocate. It is also a mistake to assume that all legal assistance officers are familiar with the law. As the former director of the Air Force legal assistance program, I would like to think that all legal assistance officers are equipped to counsel members on the ins and outs of the Former Spouses' Protection Act. But this is absolutely not true. I won't give a litany of horror stories, but there are many.
Many people facing divorce choose to retain an expert as a resource to fill in the gaps of the knowledge of their domestic relations attorney.
For those who do not, here is checklist of questions to use to evaluate the divorce attorney who says that he or she is knowledgeable in the USFSPA. It is not intended to be all inclusive, but it is a good place to start. The client should not hesitate to ask such questions, and if the lawyer is offended or defensive, the client should continue the search. I can assure you that if the lawyer's child needs brain surgery, the surgeon is going to be scrutinized very carefully by the lawyer. To continue the analogy, the lawyer is not going to be satisfied with the family doctor that treats the family's colds and flu.
1. How many cases have you handled in the past year that involved the division of military retired pay?
2. How many of these cases went to trial and how many were settled?
3. In how many did you represent the member and in how many did you represent the non-member spouse?
4. What articles or publications have you read on the subject in the past year?
5. How many hours of Continuing Legal Education do you have on this subject?
6. When was the last time that you read the federal statute that covers the division of military retired pay? Do you have the 1996 amendment to the law?
7. Please explain to me the highlights of the amendments to the Act that were passed in 1990 and 1996.
8. What is the Code of Federal Regulations?
9. Does it have anything in it that deals with military divorces? Do you have the latest changes from 1995?
10. What is the Soldiers' and Sailors' Civil Relief Act and how does it relate to this action?
11. What are the limitations on obtaining direct payment from the pay center?
12. How long does a spouse have to be married to a member in order for there to be an award of part of retired pay as property?
13. How are maintenance and child support treated differently under the Act from an award of retired pay as property?
14. Please explain the term "disposable retired pay".
15. The Act contains a special jurisdictional limitation on the power of a state court to divide retirement. Please explain it?
16. (If there is a VA disability.) Explain how the division of retired pay will be affected by a VA disability.
17. Explain to me how the division of retired pay would be affected if the member goes to work for civil service? Do you have the 1996 amendments on this subject?
18. What happens to the payments to the former spouse if she/he dies before the member?
19. What is the Survivor Benefit Plan?
20. Can a court order a member to provide SBP protection for the former spouse?
21. Who will pay the premiums of the SBP after the divorce?
22. What is the income tax consequence of a division of retired pay as property and payments of maintenance out of retired pay?
23. How does this state divide the retirement when the member is still on active duty?
If the attorney cannot answer all of these questions, it is not necessarily a sign of incompetence. However the lawyer should understand why the questions are relevant, and it should not be necessary for the attorney to run up a large bill to learn the answers.
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