by Mark E. Sullivan*
Introduction
Jake Baker was mad. He’d spent thousands of dollars on his lawyer for settlement negotiations in his divorce case, and now he was facing a trial, which meant more money for the lawyer. Jake told his lawyer that, if he was going to spend all that money, he needed to get an overview of what he could expect, and he wanted to know the questions and answers he would see in the trial. This article is a summary of what his lawyer outlined for him.
Although most divorce matters which involve military pension division are resolved through a negotiated settlement, sometimes a case goes to trial. Not much has been written about contested trials regarding military retirement benefits. The reader will find below issues of fact and of law, sample questions, proposed answers, and the arguments which one would expect to see in such a case.
The case takes place in the state of East Carolina. Jake is the petitioner in the lawsuit and his wife, Ellen Baker, is the respondent. She is a master sergeant currently serving in the Air Force. The parties have not been able to arrive at a settlement concerning her retired pay, the Survivor Benefit Plan and other military benefit and retirement issues.
Expected Questions for the Servicemember
The respondent, Ellen Baker, will want to set out the facts for the court regarding her military service. She will hope to establish her credibility with the judge as well, since she may be asked further questions on cross-examination or on redirect. She should aim to get into evidence her present rank, her date of entry into military service, and her creditable years of service. She will need to explain any breaks in service which would have an impact on her total years of service.
Ellen Baker may also aim to set out for the court what her retired pay would be if she were to retire on the date of dissolution, as will be explained below. Her testimony may also cover her Thrift Savings Plan (TSP) account and the accrued leave; these are shown below primarily to demonstrate to the judge that she’s being candid and straightforward in the disclosures of all marital property. If it were up to Ellen Baker, she’d prefer to “take a pass” on these issues; that might mean that the assets would be ignored or omitted in the final order.
Last but not least, someone – perhaps both lawyers – will need to outline for the court what the military pension is and how it’s divided. Pension division trials are rare, and those involving military retirement benefits are rare indeed. The judge will probably not be familiar with the rules, the statutes and the terms employed. In a well-tried case, the lawyers will collaborate so that the judge can “hit the ground running.” If the court does not understand the means of division, the limitations imposed by Congress, the tax aspects of pension division, how to allocate survivor annuity coverage through the SBP (Survivor Benefit Plan), the rules which are enforced by the retired pay center, and a myriad of other issues, then the resulting order will likely be flawed. In some cases, the aggrieved party may appeal the result. Even if the order is not appealed, the parties will spend plenty of their lawyers’ time (and their money) in trying to implement the flawed decree.
Jake and Ellen don’t have a lot of money to spread around with their lawyers. Both of them will benefit from a joint effort by the attorneys to bring the judge into the picture about dividing the pension, valuing the Thrift Savings Plan account, election of the Survivor Benefit Plan for the former spouse and other issues.
As to the documents needed to illustrate testimony and pin down numbers and values, Jake should be able to get these from Ellen, which would simplify the issue of authentication. This might occur by voluntary discovery or through his taking a snapshot of them at the home with his smartphone before the parties separated. It might occur through discovery and document requests.
A court order or subpoena signed by a judge will, given time, result in the production of the appropriate documents from the U.S. government. When a party requests documents from the government which are to be introduced in trial, it is usually necessary to request an affidavit concerning business records from the records custodian or a public records affidavit from the agency or office responding to the request. In regard to obtaining authenticated documents and a records affidavit, “One size fits all” is not the rule. There are no standard affidavits which are used by all federal agencies. Usually the applicant’s attorney will need to draft the affidavit, which is then reviewed and revised by the legal office in the agency. It is also important to remember that all agencies need a reasonable amount of time to respond to document requests. Sometimes several weeks or months may be needed to obtain the requested papers, affidavits and records.
Initial Questions – Basic Information
The questions below are directed to Master Sergeant (MSG) Ellen Baker by her attorney. They could also be asked of her by petitioner’s counsel if she is called as an adverse witness. And they could also be asked – with different phrasing – of Jake Baker, the petitioner, if he has knowledge of the answers or has authenticated documents to support his responses.
Q. [by the respondent’s attorney] Please state your name.
A. Ellen W. Baker.
Q. Are you married to the respondent, Jake Baker?
A. Yes – we married in July, 2005.
Q. What is your rank in the Air Force?
A. I am a master sergeant.
Q. You’re stationed at Franklin Air Force Base here in East Carolina?
A. Yes, that’s right.
Q. When did you begin serving in the Air Force?
A. I enlisted on June 3, 2000.
Q. What’s your pay grade and years of service at present?
A. “E-7 over 18.”
Q. Please explain what that means.
A. When you look up my pay on the military pay tables published by DFAS, you’ll find my current pay. It is shown on the pay table for this year under the rank of E-7, and it is also “over 18,” since I have been serving for over 18 years. Pay increases occur every two years.
Q. What is “DFAS?”
A. The Defense Finance and Accounting Service. It’s the pay center for the Air Force.
Questions about Military Service
Q. Do you have your initial enlistment contract here?
A. No, I don’t. I thought I had it at my office, which is where I keep important Air Force documents. But I’ve looked and looked, and I can’t find it.
Q. How about getting a copy of the enlistment contract from the Air Force?
A. Good idea – but no good. I tried. I phoned to obtain a copy, but that was only a week ago – as soon as I heard that this case was “first up” on the calendar this week. They told me that they could not provide a copy with that affidavit you mentioned on such short notice. “Records affidavit” I think it’s called.
Q. Well, Ellen, what can we do to support this statement of yours? How can you verify that you entered the Air Force on June 3, 2000? Is there another means of proving this to the judge?
A. Well, we could use my LES, I guess.
Q. Your “LES”? What’s an LES?
A. Oh, excuse me – it’s my leave and earnings statement. It’s called “LES” for short.
Q. Well, how would that help us with the start of your military career?
A. At the box labelled “Pay Date” at the top of my LES you will find the date when I entered active duty. In this case it shows 000602, which is years, then month, then day. So it’s 00 for 2000. And then 06 for June and 02 for the second day of the month.
Q. Were there any breaks in your military service between then and now?
A. No. I’ve had no breaks in service. I have served about eighteen years as of now, and I can retire at any time after I hit twenty years.
Questions– Basis for Retired Pay
Q. At your retirement date, will your retired pay be based on the final active duty pay you will be receiving at that point?
A. No, it will not. That’s because I entered the Air Force after September 1980.
Q. Would you explain how your retired pay will be calculated since you entered military service after September 1980.
A. My retired pay will be based on what’s called my “High-3” pay.
Q. Please explain what you mean by your “High-3” pay.
A. When I retire, the government takes the pay I got in my highest three years of service, and it uses that 36-month average to calculate my retired pay.
Q. All right. So if you were able to retire today, which will be the date of your divorce judgment, tell us what would be your “High-3.”
A. It would be $4,500.
Q. How did you figure that?
A. I ran the calculations myself last week. I took the last 36 months of LES’s and averaged only the base pay shown on them. The last 36 months is the highest pay that I have received while in service.
Questions for the Plaintiff – Other Benefits
Q. What about the Thrift Savings Plan, MSG Baker? Do you have an account was started during the marriage?
A. Yes, I do.
Q. And what is the current balance?
A. As of the first day of this month, the account balance was $12,500.
Q. Are there any loans against it?
A. Yes – I decided to build a workshop next to the house where I could store my carpentry tools and other things. I got a loan from the TSP for $7,000. About $2,000 has been paid back, so about $5,000 remains as an outstanding TSP debt balance.
Q. Is that debt balance already reflected in the net $12,500 figure which you stated a few minutes ago?
A. Yes, it is.
[At this point, the respondent’s attorney should mark and introduce the current TSP account statement into evidence.]
Q. Do you have an accrued leave balance?
A. Yes. As of the first of this month, I had 60 days of accrued leave on the books. It’s right there on my LES.
Q. Do you have a current LES here in court?
A. Yes.
Q. Show it to me, please.
A. Here it is.
Q. Your honor, I am marking this current LES from MSG Ellen Baker as Respondent’s Exhibit B, right after Exhibit A, the TSP statement. [When appropriate, move for admission of this exhibit] No further questions.
At this point, Ellen Baker’s case is finished. This is the end of the necessary testimony for her. She has given to the court the minimum information needed for the judge to assemble a military pension division order (the armed services equivalent of a QDRO, or qualified domestic relations order), a Retirement Benefits Court Order (RBCO) for the TSP, and a valuation and setoff for the accrued leave. If the testimony ended here, the court would have enough data to make these decisions.
[Part 2 of this article will cover cross-examination of the military member, direct examination of the nonmilitary spouse, the Survivor Benefit Plan, indemnification and accrued leave, as well as legal issues which should be saved for briefing and argument instead of brought out in testimony.]
* * *
*Mr. Sullivan is a retired Army Reserve JAG colonel. He practices family law in Raleigh, North Carolina and is the author of The Military Divorce Handbook (Am. Bar Assn., 2nd Ed. 2011) and many internet resources on military family law issues. A Fellow of the American Academy of Matrimonial Lawyers, Mr. Sullivan has been a board-certified specialist in family law since 1989. He works with attorneys and judges nationwide on military divorce issues and in drafting military pension division orders. He can be reached at 919-832-8507 and mark.sullivan@ncfamilylaw.com.