HOW DISABILITY CLAIMS CAN IMPACT THE DIVISION OF MILITARY RETIRED PAY IN A VIRGINIA DIVORCE

By: Grant T. Moher, Esq.

If you are a military member or the spouse of a military member going through a divorce in Virginia, military retired pay is almost certain to be an important factor.  Disability pay can also be a component of a servicemember’s compensation – one that is typically intertwined with a military member’s disposable retired pay.  Disability pay is typically non-taxable to the servicemember.  Disability pay is also not typically divisible by a court.  For these reasons, you should have a clear understanding of the way in which a disability claim can affect a military pension, and ensure that your attorney does as well.

There are three separate systems for military disability benefits: 1) Military disability retired pay; 2) Veteran’s Administration (VA) disability compensation; and 3) Combat-Related Special Compensation (CRSC).  You should be aware of all of these, and how they may affect your situation:

  • Military Disability Retired Pay. This pay is available for servicemembers who become disabled such that they cannot perform their assigned military duties.  If a servicemember has enough creditable service, he or she may be able to draw this type of disability pay.

 

There are three steps to determining the rate of this disability pay.  For the sake of example, assume the servicemember has an active duty base pay of $4,000 per month, 20 years of creditable service, and a disability rating of 60%. To determine the calculation, first, calculate the servicemember’s normal retired pay based on his or her years of service.  Let’s assume for this calculation that this number is $2,800. Then, multiply his base pay times his disability rating ($4,000 x 60% = $2,400). The servicemember receives the higher of these two amounts so in this case, he would receive a total of $2,800.  However, only the difference between these two amounts (i.e. $400) would be divisible by a court in divorce proceedings.

 

  • Veteran’s Administration (VA) Disability Benefits. These benefits are the most common, and arise when the extent of the disability is not so great as to qualify the servicemember for Military Disability Retired Pay and/or is detected after retirement.  The extent of disability benefits a servicemember receives can have a significant impact on whether the former spouse’s share is affected.

 

If a servicemember makes a successful claim for VA Disability, and is determined to be less than 50% disabled, the VA Disability Benefits received reduce the amount of the disposable military retired pay dollar-for-dollar.  Take, for example, a servicemember receiving $4,000 per month in disposable retired pay, and he and his former spouse are dividing that evenly, so each receives $2,000.  If the servicemember files a successful VA Disability claim and receives $750 in benefits, that $750 would be reduced from the $4000.  This would mean the servicemember would receive $2,375 in combined disposable retired pay by the VA Disability, and the former spouse would receive $1,625.

 

However, if a servicemember is 50% disabled or more, Concurrent Retirement and Disability Pay (CRDP) kicks in.  With CRDP, the servicemember receives both his or her disposable retired pay and VA Disability Pay with no offset.  Under the scenario above, the former spouse would continue to receive $2,000, while the servicemember would receive $2,750.

 

  • Combat-Related Special Compensation (CRSC). This compensation is awarded to anyone who has a disability of at least 10% that is directly related to the award for a Purple Heart decoration or a disability rated at 10% or higher related to combat, operation, or hazardous duty.  Like CRDP, any CRSC received is in addition to disposable retired pay.

As you can see, it’s possible that a servicemember can drastically reduce or even eliminate the former spouse’s share of disposable retired pay by applying for disability.

Until recently, some Virginia courts took the position that even though they couldn’t require the military to pay disability to a former spouse, they could order the servicemember to indemnify the former spouse if he or she ever claimed disability and in doing so, reduced a former spouse’s entitlement to disposable retired pay.  However, this option is no longer available.

The United States Supreme Court in Howell v. Howell, 137 S. Ct. 1400 (2017) held that such indemnification orders were unconstitutional.  A state divorce court couldn’t do indirectly (require indemnification for a disability claim) what it couldn’t do directly (require the military to pay a portion of a servicemember’s disability pay to a former spouse).

It can be a nasty shock for a former spouse’s share of retired pay to be reduced or eliminated due to a servicemember’s receipt of disability pay – a risk that a former spouse assumes if their divorce case goes to trial. So what can be done?  In the wake of Howell, there are several options, but all require a Settlement Agreement where a case does not go to trial:

  1. Add an indemnification clause to the Agreement that resolves the case. This would require the servicemember’s consent, of course, but if the servicemember is willing to agree to an indemnification clause, that clause would likely be enforceable.

 

  1. Ask for an additional award of spousal support. If disability pay is already being received at the time of divorce, the former spouse could ask the court to award additional spousal support to account for the disability payments received by the servicemember party.

 

  1. Ask for a reservation to seek spousal support in the future. If the servicemember has not yet retired and claimed disability, but may do so in the future, a former spouse can ask the court to reserve his or her right to receive spousal support in the future.  That way, the court can reevaluate the parties’ financial positions if disability is claimed after retirement, and make a spousal support award accordingly.

 

These are clearly complex issues that require careful consideration and extensive knowledge of the nuances of a military divorce. Whatever your situation, if you are a military member or military spouse going through separation and divorce, you should ensure you work with a divorce attorney who is experienced in military issues.

Contact one of Curran Moher Weis’s expert attorneys who can help you navigate and ensure you are protected in a military divorce.  Set up a consultation here.

 


Divorce, Custody, and Child Support for Parents of Children with Special Needs: Medicaid Waivers (Part II)

By: Demian J. McGarry, Esq.


This is the second in a series of blogs Curran Moher Weis attorneys will be publishing on divorce and child support involving children with special needs.  Please
see Part I for the first blog on this important topic.

Medicaid waivers can be a critical element in the care plan for a physically and/or intellectually challenged child.  Parents going through custody and child support disputes need to be aware of the benefits available to them under various Medicaid waivers, how they may affect their support obligations and what to be aware of when negotiating a support agreement.

Virginia established a new Medicaid waiver program in 2017—the Commonwealth Coordinated Care Plus (CCC+) program. The CCC+ program provides managed long-term service and support programs designed to offer a comprehensive set of services that address all of the Medicaid participating enrollee health care needs.  The program provides care management, care coordination and person-centered care through an integrated and interdisciplinary team approach.

There is an eligibility screening for the CCC+ Waiver.  Fortunately for families with intellectually and physically challenged minors, only the child’s income is counted, not the combined family income. This opens up the program to middle and high income families that otherwise might otherwise go bankrupt providing care for their severely physically and/or intellectually challenged child.   Virginia’s CCC+ person-centric assessment and interdisciplinary plan of care determination essentially identifies the appropriate mix of clinical and social services needed for the child.

While the Medicaid-based CCC+ multidisciplinary person-centered clinical assessment and plan of care can help support the evaluation of private health care insurance coverage determinations, such determinations are independent of Medicaid findings.  The CCC+ program requirements recognizing the availability of third-party (private insurance) liability (coverage and payment) on behalf of a child continue to be a function of communication between the CCC+ program, the parents, the insurance company, and the child’s case management officials.  The availability of private insurance coverage for a service will not disqualify a child from the program so long there are other needs of the child not covered by private insurance.

Under Virginia law, responsibility for unreimbursed medical expenses is by default, apportioned pro rata to the parents according to income shares.  Parents going through custody or support litigation may dispute what is reasonable and necessary.  If a child is enrolled in the CCC + program, the appropriate level of service determinations now rests with the program’s professional case management team, which is primarily responsible for defining the level of care that is considered adequate, appropriate, reasonable and necessary.

For example, a child can be approved for 12 hours of Licensed Practical Nurse (LPN) care per day provided.  If a parent wanted 24 hours of LPN care, they would not be able to “double up” on the service and pay out-of-pocket as the child would then lose those 12 hours allotted to them.  That is because the professional case management team has already determined that 12 hours of LPN care per day is what is reasonable and necessary.  Parents negotiating settlement agreements for the care of their intellectually or physically challenged child need to be aware of this condition so as to not contract for providing the same type of care beyond what has been established by the program. Doing so risks losing the service altogether.

Part I of this blog series defined the attendant and respite care services that are available to children under the program.  Attendant and respite care are not nursing services, so the hours provided for these care giving services would be in addition to any nursing hours.

However, the program pays a set rate for attendant and respite caregivers depending on whether the child is located in Northern Virginia or the rest of the Commonwealth.  The parent cannot subsidize the rate of the caregiver or insist on the same caregiver each time; otherwise, they can also lose the benefit entirely.  This poses a challenge in higher-cost-of-living areas if a parent wants a high quality and more consistent caregiver who may demand a higher hourly rate.  A court can deem respite and attendant are reasonable and necessary independent of the approval of such care by the program.

When negotiating agreements on the allocation of reasonable and necessary expenses for physically and intellectually challenged children, the parties should clearly define whether or not they consider respite and attendant care to reasonable and necessary.  If they do, they should consider whether they agree to accept whatever amount of services the program may provide for, or if they go outside the program, a cap at the amount the higher payor parent would be liable for.

These issues are highly complex and distressing to parents.  We at Curran Moher Weis are here to ease that burden. Contact us today to meet with an experienced family law attorney who can help guide you through a divorce or custody issues pertaining to your and your child’s needs.


The Hague Convention: International Custody Disputes and Steps to Keep Your Children Safe

By: Steven Goldman, Esq.

Custody disputes, when not handled effectively, are some of the most difficult, heart-wrenching and financially draining situations a parent can encounter in a domestic relations case. Litigation is expensive, emotionally taxing, and often results in at least one parent believing that his or her role in the child’s life has been marginalized.

International custody disputes raise the stakes even higher because court orders from the United States may not even be recognized in other countries. If your child is traveling or residing within a country, with the other parent, and that country does not recognize your court order, that country’s judiciary system will do nothing to return your child to you in the United States.

How can that be? In which countries could this occur? What steps can be taken to prevent this from happening?

First, a framework to understand the rules that are currently in place:

1980 Hague Convention on the Civil Aspects of International Child Abduction

More commonly referred to as the “Hague Convention,” this treaty was signed by a number of countries to assist one another in cases involving child abductions. Without the treaty, sovereign nations cannot interfere with another’s legal systems, judiciaries, or law enforcement, and so child custody orders are unenforceable. However, the Hague Convention sets forth the following rules for all signatories:

  • Each country must have a Central Authority, which is a main point of contact for parents and other local governments involved in abduction cases. Central Authority is responsible for helping locate abducted children, encouraging amicable solutions to parental abduction cases, and facilitating the safe return of children as appropriate.
  • Countries are expected to conduct expedited proceedings of Hague Convention applications. Courts must explain delays if it takes more than 6 weeks.
  • If custodial rights were violated when the child was taken from the child’s home country, a custody order is not necessary to begin Hague Convention proceedings.

In order to commence Hague Convention proceedings, a parent must show the following:

  • The child is under the age of 16
  • The child was “habitually resident” in one convention country and wrongfully removed to another convention country
  • A person can only have one “habitual residence,” which pertains to the customary residence of the child prior to the removal. Habitual residence can be altered only by a change in geography and the passage of time, not by changes in parental affection and responsibility, nor the child’s citizenship. See Friedrich v. Friedrich, 983 F.2d 1396 (1993)
  • The place where a person had been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from a child’s perspective. See Feder v. Evans-Feder, 63 F.3d 217 (1995)
  • Removal or retention of the child is wrongful (i.e., a violation of custodial rights)
  • A “violation of custodial rights” is a breach of custody attributed to a person under the law of the State in which the child was habitually resident immediately before the removal or retention
  • At the time of removal or retention, those custodial rights must have been actually exercised, or would have been exercised but for the removal or retention
  • The Hague Convention was in force between the two countries when the removal or retention incurred (a list of all countries that are partners to the Hague Convention can be found on the websites of the Hague Conference and the U.S. Department of State).

Compliance with the Hague Convention

One must not assume that a partner to the Hague Convention will immediately comply with its responsibilities. For example, in May 2018, the U.S. Department of State cited Japan as one of the countries showing a pattern of noncompliance with the Hague Convention. It found that “22 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months.”

Further, it found that the enforcement process is “excessively long” and it is “very difficult to achieve enforcement of Hauge return orders.” The U.S. Department of State issues an Annual Report on International Child Abduction in which it summarizes the status of all signatories to the Hague Convention.

Notwithstanding the issues surrounding noncompliance with the Hague Convention, there are legitimate reasons for denying the return of a child to his or her country of habitual residence:

  • If there is a grave risk that the return would expose the child to physical or psychological harm, or otherwise place the child in an “intolerable situation”
  • The child objects to being returned and has attained an age and maturity at which the court can take account of the child’s views
  • More than one year has passed since the wrongful removal and the child has become settled
  • The party seeking return consented to or acquiesced to the removal or retention
  • Return of the child would violate human rights
  • The party seeking return was not exercising rights of custody at the time of the removal

Steps to Prevent Your Child’s Wrongful Removal/Retention

For these reasons, it is prudent practice to be very specific about international travel when drafting a custody agreement. International travel requirements will be extremely helpful in pleading for the return of a child under the Hague Convention as they will help show that a party ignored specific protocols and that, therefore, the removal or retention of the child was “wrongful.”

Here are a few tips to help safeguard your family:

  1. The agreement should require advance notice of travel, a complete itinerary for the travel, including an exact return date, and means to communicate with the other parent and the child during the travel. If a party wishes to differentiate travel to countries that are signatories to the Hague Convention and those that are not, that must be included in the agreement as well;
  2. The agreement should also reference control of a child’s passport during periods of non-travel and a process for transferring the passport prior to travel;
  3. When traveling internationally, always carry a certified copy of your custody order. Bring a digital copy with you as well, for convenience, but do not rely on the digital copy as an official record; and
  4. If your child custody matter is being litigated, those specific terms should be argued, with reasons to support the inclusion of those terms in the final custody order.

If you or your loved one is faced with this frightening experience, please immediately contact your country’s officer, as well as a local domestic relations attorney with experience in international custody disputes, and begin filling out a Hague Application at the U.S. Department of State website.

If you need assistance beginning the process, have further questions about your child’s international travel, or simply wish to draft a comprehensive custody agreement that covers all aspects of international travel, the experienced Virginia divorce and family law attorneys at Curran Moher Weis are here to help you throughout the process.

Contact us to set up a consultation on our website, or by calling us at (571) 328-5020. Consultations are available in Fairfax and Alexandria, Virginia.


HOW IS HOME OWNERSHIP DETERMINED IN A DIVORCE?

By Daniel Schy, Esq.

 

As the busy spring housing market kicks into gear, it is a relevant time to shed light on one of the most complex aspects of divorce – what to do with the marital home.  This question is complex for many reasons, but primarily because it encompasses the substantial, sensitive mix of financial, emotional, and legal considerations.

 

From a legal standpoint, Virginia utilizes a process called equitable distribution to divide the assets and debts of the marriage, including real property.  Critical to the understanding of how real property can be distributed is understanding the difference between having a legal interest in real property and having an equitable interest in it.  Generally, the former refers to the individual(s) who are titled on a property, and, while the legal interest may affect the Court’s authority to address which party receives real property in a divorce, it typically will not impact the equitable interest each party may have.  More succinctly, a spouse can have an equitable interest even if he/she isn’t on the title.

 

The first step in the equitable distribution of property, such as a home, is identifying what real property is, in fact, an asset of the marital estate.  The Court must determine whether the home is separate property, marital property, or some hybrid of the two.

 

Separate Property:

 

There are several ways property may be considered separate property, with the most common situation in divorce cases arising from one spouse’s purchase of the property prior to marriage.  There are others – obtaining real property by the use of separate funds, by gift, or by bequest – but the overarching concept is that certain property may retain a separate nature.  For instance, if one spouse purchases a home and pays off the mortgage using separate income, then the home will be considered a purely separate asset.  The Court has no authority to distribute separate property in a divorce.

 

Marital Property:

 

Most property acquired during marriages will be considered marital property.   Income earned during the marriage is considered marital property, and, consequently, real property paid for by marital property will likewise be marital.  For instance, the parties purchase a home after they marry and use income earned during the marriage for a down payment and to pay the subsequent mortgage.  This property will be considered a purely martial asset regardless of whether it was only one or both spouses whose income contributed to the mortgage payments, and the Court will use the factors set forth in §20-107.3 of the Code of Virginia to determine how the property will be distributed. 

 

Hybrid Property:

 

As the name suggests, the classification of hybrid property occurs when there exists both a marital interest and a separate interest in the real property.  For example, one spouse purchases a home prior to the parties’ marriage, using his/her separate funds for a down payment and making payments from his/her income toward the mortgage leading up to the parties’ marriage.  Subsequent to the marriage, the income earned during the marriage is used to continue making payments on the mortgage.  As a result, this party is likely to be classified as hybrid property.

 

Other situations where a property can become hybridized is where one spouse makes a contribution of their own separate property to the equity in the home, and where one spouse’s significant personal labor and efforts can be linked to an appreciate of the separate property during the marriage.

 

The separate interest in the hybrid property cannot be distributed, and will remain the property/interest of that party, and the remaining portion that is martial will be subject to equitable distribution.  In many, but not all, similar situations, the party making the initial down payment may be permitted to a greater share of any equity in the home.

 

Does Legal Title Matter?

 

The short answer is: sometimes.  While the equitable interest discussion typically dominates the conversation when distributing real property, legal interest can also be of consequence.  More specifically, legal title can impact the distribution of assets because the Virginia Code specifically prohibits the Court from dividing or transferring property or titled in only one of the parties’ name.

 

For example, if the divorcing parties purchase a home during their marriage, but because one spouse has poor credit, he/she isn’t on the mortgage or the title.  Each party would still have an equitable interest, but the Court would not have the authority to transfer the property from the spouse who is titled to the spouse who isn’t titled.  The Court can only do so if both parties are titled on the real property.

 

So What Happens to the Home?

 

In a situation where the Court cannot transfer the title to a party who is not on the title, the Court has the authority to order a monetary award. This would be payable as a fixed sum or over a period of time in fixed amounts, to the non-titled party as for his or her equitable interest in the house.

 

If both parties are on a home title, the Court may grant it to one of the parties, while typically also awarding the other spouse payment for his/her equitable interest in the real property.  In doing so, the Court must consider the factors set forth in §20-107.3 of the Code of Virginia to make that determination.

 

For example, the Court could find that the real property is marital property, but elects to award it to one spouse.  The Court also finds that there is $100,000 of equity in the real property, and divides that equitable interest evenly.  While the Court has awarded the house to one party, it will usually also order that spouse to pay the other party his or her share of equitable interest.  Alternatively, the Court may also order the sale of the property and apportion the proceeds (or debts, if the sale price fails to cover that which is owed on the mortgage) to either party or both parties.

 

When you hear someone going through divorce litigation say, “I want the house,” while that may happen, it does not come without the cost of buying out the other spouse’s interest. It is an extreme rarity for a spouse to be awarded a home encumbered by a mortgage but to have the other spouse continue to be completely liable on the mortgage with no financial responsibility on the spouse receiving the home.

 

There are far more nuances than can be covered in a brief overview of what to do with your home during divorce.  The circumstances of each case will dictate how the distribution of real property should occur, and having a trusted attorney assisting is critical to understanding your options.

 

The attorneys at Curran Moher Weis have the knowledge and experience to help you navigate this and other complex issues of your divorce.  Contact us here or call us at (571) 328-5020 to set up a consultation today.


WHO GETS THE PETS IN A DIVORCE?

By Carl Schoenherr , Esq.

Most people think about custody as it pertains to children in a divorce, but what happens when a couple has a pet?

Are pets treated the same as children, and does the court care about the best interest of the family pet?  For many people, pets are part of their family, and the issue of who gets the family pet in a divorce can be especially important, challenging and emotional. Unfortunately, this area of law can be particularly ambiguous when it comes to Virginia law, but I’ll “shed” some light on that in this blog.

According to Virginia law, pets are personal property, and just like any other personal property, they are subject to division by the court in a divorce case under Section 20-107.3 of the Virginia Code.  This section of the code focuses on equitable distribution – the process the courts use to identify and determine the value of assets and liabilities, determine which of those are considered marital vs. separate, and then divide these according to a series of factors (having to do with the marriage, acquisition, and care of the property).

Inherent in this process are a couple of takeaways for those who are concerned about the custody of the family pet.

First, the best way to ensure you get a pet in a divorce is to prove that he/she is your separate property. .  If you can prove the pet was purchased, or adopted, by you prior to the marriage without any funds from the other party, then the presumption would be that you get to keep the pet.  The other party would need to prove that they acquired an interest in the pet over the course of the marriage by significantly increasing the pet’s value through his/her own efforts.  Note that the courts are looking at the value to the general public, not value to an owner, so this increase can be difficult to prove

If the court determines that a pet is marital property, then the court uses the factors contained in the code to divide the property.  Some examples of things a court may look at include:

  • Contributions, monetary and non-monetary, that a party made to the acquisition, care, and maintenance of the pet;
  • Which party is in the best position to continue to maintain the pet;
  • Any history of abuse or neglect of the pets; and
  • Where any children who have bonded with the pet might be residing pursuant to a custody or visitation order.

Furthermore, the factors include a catch all, which provides sufficient leeway for additional arguments about where the pet should reside, which could potentially include the “best interests” of the pet.  Tailoring your evidence in a case to support the factors above, such as evidence as to who cared more for the pet, who spent more time with the pet, etc., will increase your chances of a court awarding you the pet in a divorce.   A court may order the pet and any value assigned to you outright, or award you the pet, but order you to pay a portion of its assigned value to the other spouse.

For many parties, the process of using the courts to decide whose “property” the pet is can seem cold and unfair.  This is especially true when the court assigns a dollar value to the pet that can never measure up to the sentimental value you place on him/her.  However, you have an alternative to using the courts.  Because the law considers pets “property,” a court will not set aside any agreement regarding the pet, unless the agreement is unenforceable as a contract.  Once you have an agreement regarding the pet, that agreement can be incorporated into and enforced by the court as part of the final order.

If you need assistance reaching an agreement, be sure you are working with a knowledgeable family law attorney who can counsel you on all of your options, such as mediation or other dispute resolution techniques.  The experienced attorneys at Curran Moher Weis are here to help you through that process and other complex aspects of a divorce and property division. Contact us for a consultation here.


HOW FEDERAL EMPLOYEES’ GROUP LIFE INSURANCE SPOUSAL BENEFITS WORK IN A VIRGINIA DIVORCE

 

By Grant T. Moher, Esq.

Divorcing parties have essentially always been able to agree to maintain life insurance for one another, and for the court to enforce those agreements.  Until recently, though, Virginia courts have not had the ability to require a spouse to maintain life insurance for the other absent the parties’ agreement.

Now, section 20-107.1:1 of the Virginia Code is in effect, and Virginia courts have the ability to require spouses paying support to maintain a policy of life insurance to benefit the recipient spouse.  Virginia has a large federal workforce, and federal employees are covered by the Federal Employees’ Group Life Insurance Program (“FEGLI”).  Under section 20-107.1:1, can a court now require a federal employee who has a spousal support obligation to name his or her former spouse as a beneficiary of some or all of his or her FEGLI policy?  The answer is yes.

I have spoken to a great many family law practitioners who are not aware of the current federal laws regarding FEGLI, and who believe that state court orders requiring the designation of beneficiaries on FEGLI policies are not enforceable due to the law of federal preemption.  While this was once true, it is no longer the case and has not been the case for 20 years.

The following is a description of the evolution of the law regarding FEGLI, and sheds light on why it is not commonly known that court orders to require the maintenance of FEGLI policies are, in fact, enforceable:

In Ridgeway v. Ridgeway, 454 U.S. 46 (1981), Army Sergeant Ridgway and his former wife got divorced in Maine.  The Maine divorce decree required Sergeant Ridgway to maintain the parties’ three children as beneficiaries on his Servicemembers Group Life Insurance (“SGLI”) Policy provided to him through his employment with the Unites States Army.

Sergeant Ridgway remarried and changed his SGLI policy to provide for payment of the death benefit to his new wife.  Sergeant Ridgway died, and the state court had to confront the question of who should receive the death benefit.  Ultimately, the United States Supreme Court held that the death benefit must be paid to Sergeant Ridgway’s new wife, because to hold otherwise would run afoul of the Supremacy Clause of the United States Constitution, which dictates that federal laws trump state laws where there is a conflict between the two.  In so holding, the Court found that the federal law of SGLI, which provided that a servicemember’s beneficiary designation controlled how his or her SGLI benefits were paid, trumped the Maine state court order requiring a different beneficiary to receive payments.

At the time of the ruling, FEGLI operated essentially the same as SGLI, so at that time, a state court order requiring the naming of a life insurance beneficiary could not override the employee’s beneficiary designation on file with the Federal Government’s Office of Personnel Management (“OPM”).

The law regarding FEGLI beneficiary designations was changed, however, in 1998.  That year, the United States Congress passed Public Law 105-205, which provided for the first time that state court orders directing the maintenance of insurance and the naming of beneficiaries overrode the employee’s beneficiary designation.  The only caveat to this was that to be effective, the state court order had to be transmitted to the employee’s agency (or to OPM generally if the employee was retired) prior to his or her death.  Subsequent regulations interpreting Public Law 105-205 published on April 6, 1999 describes the change in the law as follows:

The Federal Employees’ Group Life Insurance (FEGLI) law sets an order of precedence for payment of benefits following the death of an insured employee, annuitant, or compensationer (5 U.S.C. § 8705). First in the order of precedence is a designated beneficiary. There has been no statutory limitation on changing designations.  When a divorce decree requires an individual insured under FEGLI to name his/her children or former spouse as the beneficiary, it is possible the individual may not comply or may comply and then change the designation at a later date. This action, while potentially in violation of the court order, did not violate the FEGLI law.

 

Pub. L. 105-205, 112 Stat. 683, enacted July 22, 1998, requires benefits to be paid in accordance with the terms of a court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement relating to a court decree of divorce, annulment, or legal separation, regardless of whether or not the insured individual actually completes a designation complying with the court order, if the court order is received in the appropriate office before the death of the insured individual. To the extent provided in the court order, the court order supersedes any prior designation by the insured individual. Pub. L. 105-205 also prohibits an insured individual from changing his/her designation, unless the person(s) named in the court order agrees or unless the court order is subsequently modified by the court that originally issued it.

Why, then, do so many practitioners believe that court orders directing FEGLI beneficiaries can be overridden?  The answer likely lies with the Federal Government’s published Handbook for Attorneys on Court-ordered Retirement, Health Benefits and Life Insurance.

The Handbook was originally published by the Federal Government to educate attorneys on the various retirement, health, and life insurance benefits enjoyed by Federal Government employees, as well as to assist attorneys in generating the proper forms to divide the benefits between divorcing spouses.  (The Handbook can be found on OPM’s website, www.opm.gov. Regarding FEGLI, it provides that beneficiary designations can be changed by the employee at any time.)

However, the handbook was last updated in 1997 – a year before Public Law 105-205!  The Federal Government has simply never gotten around, in the last 20 years, to updating the Handbook to reflect the current state of the law regarding FEGLI beneficiary designations.

It should be noted, however, that the Federal Government does not appear to have enacted a provision similar to Public Law 105-205 for the SGLI policies that cover military members.  Thus, a court order requiring a divorcing Servicemember to designate his or her former spouse as a beneficiary under his or her SGLI would not survive the Servicemember’s later decision to change his or her beneficiary.

It is essential to hire a divorce attorney who is knowledge about the nuances and complexities of family law. The experienced attorneys at Curran Moher Weis make a point to stay up to date on these matters, and to serve as an educated, supportive guide for our clients as we navigate their divorce together.

If you are a federal government employee or spouse pursuing a divorce, contact us to discuss a plan that will set you up for as successful and painless of a process as possible.


What Happens to Accounts for Children in Divorce?

Oftentimes, during marriage, parents make financial plans for their children’s future, particularly their educational future. Considering the rising costs of higher education, many parents believe this to be an essential part of their financial plan during their marriage. The question, however, is what happens to these types of accounts when two parents decide to divorce?

There are many types of custodial accounts or college savings accounts. Two of the most common such accounts that we often address in divorce are a 529 Plan and a Uniform Transfers to Minors Act (“UTMA”) account. A UTMA account is a savings account that an adult controls for the benefit of a minor, but the account is ultimately transferred to the child when the child becomes an adult. Funds accumulated in a UTMA account can be withdrawn at any time so long as they are being used “for the benefit of the child.”

A 529 Plan is similar, except that the funds accumulated in the account are owned by the parent or custodian and must be used specifically for a child’s qualified education expenses, such as tuition and fees and room and board. As the parent controls the funds in the account, use for any other purpose may result in penalties and tax consequences.  While there are many other features of these accounts, it is best to speak with a financial professional to ascertain the pros and cons of each. Specifically, each account has different tax advantages and consequences.

For purposes of divorce, college savings accounts, such as 529 Plans, may be subject to property division. Pursuant to Section 20-107.3 of the Code of Virginia, any asset earned or acquired during the marriage by either spouse is presumed to be marital property subject to equitable distribution. Oftentimes, a college savings account falls under this categorization because the parties created and contributed to the account during their marriage. In addition, some Virginia courts have held that because the 529 Plan can be revoked (albeit not without penalty or negative tax consequences), a 529 Plan is similar to a savings account that would otherwise be subject to equitable distribution. Further, because a Virginia court is unable to distribute property in a divorce to a non-party, which in this case would be the parties’ child or children, the court cannot order that the 529 Plan or the funds held in such an account be given to the parties’ child or children.

This is somewhat perplexing to many clients, who view the funds accumulated in a 529 Plan as money that belongs to the children. In that case, the parties may reach a settlement that directs that one parent remain the custodian of a child’s 529 Plan and that the parties agree that the funds will not be withdrawn for any purpose other than for the child’s qualified education expenses. The parties may also add terms in any such agreement about any continuing periodic contributions to the 529 Plan, an age cap at which the funds must be used for the child’s education expenses, and what will happen with excess funds held in a 529 Plan, or agree to exchange statements for a child’s 529 Plan on a regular basis so both parents, even after divorce, are kept informed.

UTMA accounts, on the other hand, may not be subject to division in a Virginia divorce. Because the funds held in a UTMA account are gifted to the child and are the property of the child for which the account is held, the funds are not part of the marital estate. As such, the funds held in a UTMA account may be sheltered from equitable distribution in a divorce.

That being said, everyone’s financial circumstances are different, and there are many options for addressing 529 Plans and UTMA accounts in a divorce. So, it is important to discuss your particular case with an experienced family law attorney who can explain all options to you.


Curran Moher Weis Signs on as Main Sponsor for 2019 Heroes vs. Villains Run for Justice

 

For the 7th consecutive year, Curran Moher Weis will sponsor the Annual Heroes vs. Villains Run for Justice 5K – and in 2019, serve as the main, Superhero-level sponsor of the event.

This will be a milestone year, marking 10 years that the Fairfax Law Foundation has hosted the race, which supports pro bono legal service programs for Fairfax County residents who could not otherwise afford representation. The Foundation’s program also provides legal education programs and interactive activities for area students.

Curran Moher Weis has sponsored the event every year since our inception in 2012, as part of our effort to give back to the Northern Virginia community we serve. Our exceptional attorneys and staff will be out in full force at the event – running, volunteering and cheering on race participants.

Stop by the Curran Moher Weis booth for even more fun, including games and activities to keep children – and adults – occupied before and after the race! And follow us on Twitter (twitter.com/curranmoherweis) or Instagram (instagram.com/curranmoherweis) for the latest news, and photos, leading up to and on race day.

 

More Information:

Fairfax Law Foundation Heroes vs. Villains Run for Justice 5K

Sunday, April 7, 2019 (Kids’ Fun Run: 8:30 a.m. | 5K: 9 a.m.)

Fairfax Corner (4100 Monument Corner Drive | Fairfax, VA 22030) | Course Map

Register to run, or sign up as a volunteer.


How Holidays Work in Divorces and Child Custody Cases

By Grant T. Moher, Esq.

A New Year is almost upon us, and couples going through a separation or divorce this season are likely experiencing the difficulty of agreeing to holiday custody and visitation agreements. With a New Year comes another 12 months of special days that divorcing, or divorced, parents have to determine how to manage – from Christmas, to Federal holidays that result in long weekends, like Martin Luther King, Jr., Day and President’s Day, to children’s birthdays and summer school breaks.

As you plan for the year ahead, this blog will help you better understand how holiday visitation schedules work for these unique situations.

  1. Federal Monday Holidays

Often, parents want to evenly divide Federal Monday holidays (e.g. Martin Luther King, Jr. Day, President’s Day, Memorial Day, Labor Day, etc.) – even if the weekend that Monday follows was spent with the other parent. Unless there is a very important reason for this, it is typically better for children to spend Federal Monday holidays with the parent with whom they spent that adjacent weekend. This facilitates out-of-town travel and activities that may run from the weekend into the holiday and makes it easier on and less disruptive to the children.

  1. Children’s Birthdays

Sometimes parents want language in an agreement obligating both parents to share time with the children on their actual birthdays or celebrate the birthdays together. There are important factors to consider to make this approach work. If parents are getting along well enough to have a joint birthday party for the children, they don’t need an agreement to force them to do it. If parents do not have such a relationship, forcing a joint party or negotiating a split of time on the actual day can result in a tense and unpleasant atmosphere. If parents aren’t on terms that allow them to have an amicable joint celebration, a better scenario is for each parent to have an individual celebration for the child on his or her time, such as on the nearest weekend.

  1. Summers

Commonly during summers, parents will each have some uninterrupted weeks with the children. Depending on the level of cooperation between the parents, agreements may need to include provisions for how those weeks will be determined. In situations where parents are likely to disagree on weeks, there are several methods of resolving disputes. For example, some choose to state that in odd-numbered years (2019, 2021, etc.) one parent’s chosen weeks take precedence, and in even-numbered years the other parent’s preferences take precedence.

Another possibility is to require that a parent’s week start and end on a particular day that encompasses his or her already-scheduled weekend. The upside to this approach is that it is impossible for the parents to schedule weeks that conflict with each other. The downside is that a major event (e.g. a wedding or family reunion) may fall outside of these potential weeks.

Since events come up, and other situations could occur that need advance planning, such as summer camps, I typically advise parents to give notice of their chosen weeks as early as reasonably possible in the New Year. There is nothing to guarantee both parents will agree to those weeks and that further issues won’t arise, such as when parents do not provide ample notice of their preferred weekends, language can be built into agreements to get ahead of this.

  1. Thanksgiving and the issue of three weekends in a row

Where parents have a regular schedule that involves alternating weekends and the custody schedule provides that Thanksgiving encompasses both the holiday and the weekend immediately following it, one party or the other can end up having three weekends in a row with the children. This happens if one parent’s Thanksgiving falls on the other’s weekend. Sometimes parents are fine with this. However, if they are not, the good news is there are multiple ways to solve this.

One way is to make Thanksgiving encompass only the Wednesday through Friday of the holiday and not the weekend. This solves the problem of three weekends in a row, but this may not be desirable when one or both parents customarily travel over the holiday and want the entire weekend to do so. Another option is to “reset” the schedule if it were to result in one parent having three weekends in a row, such that the weekend immediately following Thanksgiving weekend would switch to the parent who did not have the children over Thanksgiving weekend and the weekend immediately prior to it.

  1. Spring break

It is customary in custody schedules to make provisions for spring break.  Children and their parents often travel during this week as it is normally the longest break schools have between winter break and summer recess.  Some custody schedules alternate the entirety of spring break each year and some schedules split the spring break in half, with each parent having time with their children.  Whether you choose to alternate or split spring break, it is critically important to define exactly which days spring break covers.  Most school calendars define spring break as the Monday through Friday of the week, leaving off the weekends.  Thus, if the intention is to include the immediately preceding or following weekend, the custody schedule must clearly define this.  The same is true if the custody schedule splits the spring break week in half; parents need to know what the start and end date is to calculate the halfway point.

Example of a Holiday/Summer Schedule:

While holiday/summer schedules can be adjusted in virtually any way, sometimes people want to begin with a generic template to give them an idea of how to start. The following is a common schedule that can be modified, and can at least give a basic idea of how such schedules can look.

Note, the following is provided for example purposes only. Visitation schedules must be developed and tailored to meet the unique needs of each couple and their child(ren). It is important to seek support from a family law attorney with extensive experience counseling on the best visitation schedule for you.

A.  Holiday Visitation

Holiday visitation shall be as set forth below. To the extent that the holiday visitation set forth below conflicts with the regular weekly custodial schedule, the holiday visitation shall supersede it.

  1. Spring Break
    The parties shall alternate the children’s school Spring Break each year, defined as 5:00 p.m. on the Sunday after school releases until 5:00 p.m. the Friday before school reconvenes. Father shall have Spring Break in even-numbered years. Mother shall have Spring Break in odd-numbered years.
  2. Thanksgiving
    Thanksgiving shall be defined as the time school lets out on the last day of school before the Thanksgiving holiday until 5:00 p.m. on the Friday immediately following the holiday. Mother shall have the children for Thanksgiving in odd-numbered years. Father shall have the children for Thanksgiving in even-numbered years.
  3. Winter Break
    The children’s winter break from school shall be divided in half. In odd-numbered years, Mother shall have the children for the first half of the winter break, and Father shall have children for the second part of the winter break. In even-numbered years, Father shall have the children for the first part of the winter break, and Mother shall have the children for the second part of the winter break.
  4. Fourth of July
    The parties shall alternate the Fourth of July holiday each year, defined as 10:00 a.m. on the holiday until 10:00 a.m. the next morning. Mother shall have Fourth of July in odd-numbered years. Father shall have Fourth of July in even-numbered years.
  5. Father’s Day
    In all years, Father shall have the children from 9:00 a.m. until 5:00 p.m. on Father’s Day.
  6. Mother’s Day
    In all years, the mother shall have the children from 9:00 a.m. until 5:00 p.m. on Mother’s Day.

 

B.  Summer Visitation

Each parent shall have the children for two (2) uninterrupted weeks during the summer, which may be taken consecutively. Each parent shall designate their week by April 1st each year. If the parties’ chosen weeks are in conflict, mother’s choice shall control in odd years and Father’s shall control in even years. Unless otherwise agreed in writing, weeks shall start at 5:00 p.m. on the Friday beginning a party’s weekend, and continue through the following Friday at 5:00 p.m.

Visitation schedules can be complicated and can cause tensions to run high amongst parents. The attorneys at Curran Moher Weis have decades of experience in guiding parents through negotiating a custody and visitation schedule that is optimal for parents and most importantly, their children. Contact us for more information, and check back on our blog regularly for the latest advice on this and other important divorce and custody matters.


Divorce, Custody, and Child Support for Parents of Children with Special Needs (Part I)

By: Demian J. McGarry, Esq., and Nicole Grejda, Esq.

This is the first in a series of blogs Curran Moher Weis attorneys will be publishing on divorce and child support involving children with special needs. We invite you to bookmark our blog and check back regularly for further input on this important topic.

If you have a child with special needs, you already face a great deal of unique challenges. Those challenges become increasingly complex if you are also navigating a divorce and/or a child custody, visitation, or child support determination in Virginia.

At Curran Moher Weis, we believe that when a marriage or partnership involving children dissolves, it is of the utmost importance to consider solutions that benefit the child(ren) – especially those with special needs. That starts with ensuring you have an experienced family law attorney who understands the complexities of these issues and can help you understand them as well. This blog series will shed light on this special area of focus for our firm.

Custody and Visitation of Children with Special Needs 

In divorce cases in Virginia, the court is asked to determine a custody and visitation schedule that is in the best interests of the child.  When a child has special needs, several points of consideration factor into the court’s decision.

One factor the court must consider is “the age and physical and mental condition of the child, giving due consideration to the child’s change developmental needs.” This means the court will consider how experienced and knowledgeable a parent is regarding the administration of medication to the child, how involved a parent is in the child’s necessary services, such as individualized educational programs (IEPs) and occupational, physical, or mental health therapy, and how much time a parent can devote to the daily care of the child.  If parents are conflicted about how to care for a child, the court may consider which parent has acted in the child’s best interests to that point, and which parent articulates the best plan for the child going forward.  The court will also consider how prepared and able each parent is to have the child with him or her.

Child Support Involving Children with Special Needs 

The court is commonly asked to determine the appropriate amount of child support payable by one parent to the other for the benefit of the child, under “guidelines” set forth in Virginia Code Section 20-108.2.

The amount of support calculated with those guidelines is presumed correct unless there is relevant evidence that a deviation would be in the best interest of the child based on factors set forth in Section 20-108.1(B). One factor that must be considered pursuant to Section 20-108.1(B)(8) is “any special needs of a child resulting from any physical, emotional, or medical condition.” A court may consider, for example, the cost of medication, medical equipment, nursing services in the home, medical transportation, and the cost associated with treatment plans.

Although child support typically terminates when a child reaches the age of majority or otherwise emancipates, for a special need child, child support can be extended for significantly longer.  For example, pursuant to Virginia Code Section 20-124.2(C), the court may order that child support continue to be paid for any child over the age of 18 who is: (a) severely and permanently mentally or physically disabled, and such disability existed prior to the child reaching the age of 18 or the age of 19 […]; (b) unable to live independently and support himself; and (c) residing in the home of the parent seeking or receiving child support.

While we’re sharing these codes of Virginia law as information to know about these issues, don’t worry about remembering them.  That’s our job.

Special Needs Trust/ABLE Account 

The court may also order that child support payments be paid to a Special Needs Trust or an ABLE account.

Special Needs Trusts are often created to address the unique needs of the child and to ensure that child support payments or other funds are used to meet those unique needs. Special Needs Trusts also provide an additional benefit: if money is held in a Special Needs Trust for the benefit of the child instead of being paid directly to the child to meet his or her living expenses, then the child is not deemed ineligible to qualify for government benefits such as social security income and/or Medicaid. A child will therefore be able to receive support from the Special Needs Trust in addition to any applicable government benefits.

An ABLE account is a tax-advantaged savings account for a person who becomes disabled prior to the age of 26. As long as the funds held in the ABLE account are used for “qualifying expenses,” then the earnings on the account investments are not taxed. Similar to a Special Needs Trust, funds in an ABLE account do not risk the child being deemed ineligible to qualify for government benefits.

Supplemental Security Income (SSI) 

Divorcing parents of children with special needs, or those navigating a child support matter, also need to be aware of the numerous public resources that may be available to them.  Parents may receive Supplemental Security Income (SSI) on behalf of their physically and/or intellectually challenged child.  SSI:

  • Is designed to help aged, blind, and disabled people, who have little or no income; and
  • Provides financial assistance to meet basic needs for food, clothing, and shelter.

Parents also need to be aware that in Virginia, a custodial parent’s receipt of SSI benefits for a special needs child does not entitle the non-custodial parent to a credit or reduction in their child support. SSI benefits received for a child are designed to supplement other income, not substitute for it.

Medicaid Waivers 

Medicaid waivers can be a critical element in the care plan for a physically and/or intellectually challenged child. A Medicaid waiver is a provision in Medicaid law which allows the federal government to waive rules that usually apply to the Medicaid program. The intention is to allow individual states to accomplish certain goals, such as reducing costs, expanding coverage or improving care for certain target groups. Thanks to these waivers, states can provide services to their residents that wouldn’t usually be covered by Medicaid. For instance, in-home care for people who would otherwise have to go into long-term institutional care.

In Virginia, there are six different Medicaid waiver programs, three of which are relevant to minors:

  • the CCC Plus Waiver;
  • the Intellectual Disability Waiver; and
  • the Individual and Family Support Waiver.

Coverage under these waivers may provide for in-home attendant care, respite care and nursing care at various levels.  Attendant care is direct support in the home and community with personal assistance, activities of daily living, using the community, taking medication and care of other health needs. They can either be provided by an agency or by consumer-directed services. Consumer-Directed Services offer the individual/family the option of hiring workers directly, rather than using traditional agency staff.  Respite care services provided for unpaid caregivers (e.g. parent) of eligible individuals who are unable to care for themselves that are provided on an episodic or routine basis because of the absence of or need for relief of those unpaid persons who routinely provide the care.  To put it simply, respite care provides the much needed physical and mental health breaks for the caregiving parent so they can leave the home.

Parents should maximize benefits available to them under the waiver as coverage can significantly reduce the out-of-pocket unreimbursed medical expenses that they may otherwise be obligated to pay under a child support order. The scope of the unreimbursed medical expenses statute contained in Virginia Code §20-108.2(D) is broad enough to cover attendant and respite care.

Make Sure Your Attorney Has Expertise in Special Needs Cases

Special needs issues in divorce, custody and child support situations continue to increase. Often, these issues create a mine field for families trying to navigate this very complicated and niche area. Consultation with a family law attorney who is familiar with special needs issues can ensure that your interests are protected and objectives maximized.

Curran Moher Weis attorneys are dedicated to supporting parents of children with special needs, and have decades of experience successfully guiding them through these complex matters. Contact us to set up a consultation, and stay tuned for future posts, as we help you learn more about this important topic.