By: Anna Goulet Zimmerman, Esq.
We know that collaborative divorces can lead to less friction and better post-divorce relationships, which is especially important in cases involving children. Divorces wherein one or both spouses are, or were, in the military present challenges for which collaborative law can allow for the parties to work together to reach a solution which might not otherwise be available.
When deciding how to address a military pension/annuity, most New Hampshire family law practitioners are familiar with the Hodgins formula, dividing a pension plan based on the amounts accrued between the date of marriage and the filing of the petition for divorce or legal separation. A Military Pension Division Order (similar to a Qualified Domestic Relations Orders) is then issued dividing a retirement pursuant to this formula. However, the Defense Finance and Accounting Service (DFAS) will not honor a Military Pension Division Order unless the “10/10/10 rule” has been satisfied. Under this rule, the parties must have been married for 10 or more years, and 10 years of the marriage must have overlapped 10 years of service. For those that do not meet the 10/10/10 rule, an order can still be issued dividing the retirement benefit, but the military spouse will need to make the monthly payments directly to his or her former spouse – which creates a whole new set of issues, such as who pays the income tax on the benefit received.
Courts are reluctant to trade off the benefit of a monthly pension benefit for another asset as it is difficult to value the retirement benefits (if the service member lives a long life the pension has far more value than if the service member died a year after retirement). The collaborative process can help explore the potential options. Maybe one spouse gives up the interest in the pension in exchange for another benefit, if that is what works best for the unique situation of that couple.
As another example, maybe a couple that has only 9 years of the marriage overlapping service time might agree to put off the date the divorce is finalized to allow for the full ten years to accrue but agree that for the purposes of calculating the percentage of the retirement benefit to go to the non-military spouse the date the collaborative agreement was signed would be used. With the passage of the New Hampshire Collaborative Law Act (RSA 490-J) the parties can now be confident that the agreement to use a certain date for the division of an asset would be enforced by the courts. This allows the parties the freedom to know there is no need to rush to file a divorce just to get the protections of the timing and encourages the parties to take the time needed to fully examine their options.
The foregoing is just one example of the benefits of collaborative law for military spouses. Other areas in which collaborative can assist the parties to work together for a positive result includes, but are not limited to: (1) Allowing for Parenting Plans that are flexible enough to deal with weekends drills and deployments; (2) Putting in place a process on how a move in duty station will be addressed; and (3) Determining whether a Survivor Benefit Plan should be applied and how the funding of that benefit should be addressed.
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Attorney Anna Goulet Zimmerman focuses her practice on personal injury. She recognizes that people are coming to her at one of the most difficult times in their lives. When in need of an expert and caring professional, Anna is there to protect her clients’ rights and interests. For more information or to contact Anna please visit Law Office of Manning & Zimmerman, PPLC
Our office is located at 87 Middle Street, Manchester, NH 03101 and our phone number is 603-624-7200.