The retirement benefits of members of the military are also not divided using a QDRO because these benefits are not subject to ERISA.  Instead, military retirement pay is divided using a Court Order, which will meet all the requirements of the relevant federal laws and regulations.  Central to the division of military retirement pay is the Defense Finance and Accounting Service (“DFAS”), which is akin to the Plan Administrator for private defined contribution and defined benefit plans and to the Office of Personal Management for federal civilian retirement.

A minimum of twenty years of service is required for any member of the military to receive retired pay, unless the service member is forced to retire because of disability.  Military retirement benefits are computed under one of three formulas which is keyed to the year the service member entered active duty; partial credit is given for service in the Reserves or National Guard.  Only Disposable Retired Pay, which is the service member’s total monthly retirement pay less deductions for previous overpayments of retired pay, forfeitures ordered by a court martial, certain disability retirement payments, and the amount deducted to provide a Survivor Benefit Plan annuity for a spouse or former spouse pursuant to a Court Order, can be divided by a Virginia Court in the context of a divorce.       

As with the retirement benefits of federal civilian employees, a portion of the service member’s Disposable Retired Pay cannot be paid to the former spouse until the service member actually retires.  Additionally, any survivor benefits awarded to a former spouse will stop if the former spouse remarries prior to the age of fifty-five. (Though, if the former spouse’s marriage terminates by death, divorce, or annulment, the payments can be reinstated.)  However, survivor benefit coverage must be elected by the service member on or before his retirement, even if they are required by Court Order.  As a result, a domestic attorney representing the estranged spouse of service member (or former service member) must be mindful of the service member’s date of retirement.

The retirement benefits of federal civil servants are not divided using a Qualified Domestic Relations Order (“QDRO”) because these benefits are not subject to the Employee Retirement Income Security Act (“ERISA”).  Instead, the retirement benefits of federal civil servants are divided using a Court Order referred to as a “Court Order Acceptable for Processing” (“COAP”), which will meet all the requirements of the relevant federal laws and regulations.  Central to the division of federal civil service retirement benefits is the Office of Personnel Management (“OPM”), which is akin to the Plan Administrator for private defined contribution and defined benefit plans.

An employee of the Federal government (other than those who are military personnel, who are treated differently) will be covered either by the Civil Service Retirement System (“CSRS”) or the Federal Employees Retirement System (“FERS”) depending upon when he or she began working for the federal government.  (Though, under certain circumstances, CSRS participants were able to switch to the FERS once it became available.)   CSRS participants are enrolled in a defined benefit plan similar to the pension of a private company.  However, they are not covered by Social Security and, before their retirement, they do not pay Social Security tax on their earnings.  FERS participants, on the other hand, are covered by Social Security and do pay Social Security taxes on their earnings.  In comparison to their CSRS counterparts, though, they receive a much smaller defined benefit upon retirement.  But, FERS participants are enrolled in a 401(k)-like system called the Thrift Savings Plan (“TSP”).

When dividing the pension component of federal civil service retirement benefits in the context of a divorce, it is important to remember that there are three separate types of CSRS or FERS benefits subject to division: employee annuities, refunds of employee contributions, and former spouse survivor annuities.  The participant’s TSP is also subject to division in a divorce.  A well-versed domestic attorney will assist the client in negotiating a settlement that maximizes his or her potential eligibility for these components.

A defined benefit plan is an employer-sponsored retirement plan where employee benefits are determined pursuant to a formula which may involve factors such as salary history, duration of employment, or other criteria.  Pensions are examples of defined benefit plans.   

In the context of a divorce, the Court may award the non-participant spouse up to 50% of the “marital share” of the participant’s defined benefit plan by QDRO.  The awarded portion of the marital share may take the form of a specified percentage of the account balance, or a fraction/percentage of the marital share defined as of a certain date.  In addition, the non-participant spouse may be entitled to a portion of other economic improvements on the participant’s benefit, depending upon the features of the particular plan and what is ordered by the Court or agreed upon by the parties.

In the course of negotiating a settlement or preparing for trial, one issue to be considered is whether the non-participant spouse will take his or her share of the participant’s defined benefit plan as a shared interest or as a separate interest.  Each of these options has benefits and disadvantages and must be considered carefully in the context of the particular defined benefit plan.    

If a shared interest is selected, the payments to be received by the non-participant spouse will begin at the same time the participant begins receiving his or her benefit, and will be made to the non-participant spouse in the form elected by the participant.  The payments to the non-participant spouse will also cease upon the death of the participant unless survivorship benefits are negotiated, because the duration of the benefit is keyed to the participant’s lifetime.  This method for dividing a defined benefit plan is sometimes referred to as an “if, as, and when received” approach.

If a separate interest is selected, the payments to be received by the non-participant spouse may begin, within the parameters of the particular plan, when the non-participant spouse chooses, and will be made to the non-participant spouse in the form he or she elects (again, within the parameters of the particular plan).  The payments to the non-participant spouse will not cease upon the death of the participant because the duration of the benefit is keyed on the non-participant spouse’s lifetime.  Unfortunately, if the participant is already in pay status, this method for dividing the participant’s interest in the defined benefit plan is usually not available.     

A defined contribution plan is an employer-sponsored retirement plan where the amount of the employer's annual contribution is specified and the employee can also elect to make contributions.  401(k) plans and profit-sharing plans are examples of defined contribution plans.   

In the context of a divorce, the Court may award the non-participant spouse up to 50% of the “marital share” of the participant’s defined contribution plan by QDRO.  The awarded portion of the marital share may take the form of a specified dollar amount, a specified percentage of the account balance, or a fraction/percentage of the marital share defined as of a certain date.  In addition, the non-participant spouse may be entitled to a portion of other economic improvements on the participant’s benefit, depending upon the features of the particular plan and what is ordered by the Court or agreed upon by the parties.

In the course of negotiating a settlement or preparing for trial, one issue to be considered is whether the non-participant spouse will request interest, gains, and losses on his or her award.  If the non-participant spouse is awarded or given interest, gains, and losses, his or her awarded portion will be increased (or reduced, as the case may be), depending upon the market, from the date of the award (usually the date of separation) to the date the Administrator of the Plan distributes the award to the non-participant (i.e., typically by establishing a separate account for the non-participant).  If the non-participant spouse is not awarded or given interest, gains, and losses, he or she will only receive his or her awarded portion.  Obviously, whether a non-participant chooses to ask for interest, gains, and losses will depend upon the then-current posture of the market, and may represent a gamble since there is often a substantial delay between when the Court makes its equitable distribution award (or the parties sign a Settlement Agreement) and the administration of the QDRO (and, therefore, the division of the retirement benefits).   

In recent years, many divorcing couples have chosen mediation as an alternative to litigation. Mediation involves many of the same procedures as litigation, but is geared to produce less hostility and lower the costs for the parties. Many mediators in Virginia have been properly trained for this process; however, some mediators have not. So, be vigilant and ask questions.

            The Virginia State Bar Association can offer referrals to a number of qualified mediators, as well as a list of attorneys who can represent clients in the mediation process and those that specialize in domestic relations matters.

            Many lawyers in our area are also collaboratively trained, another type of alternative dispute resolution to litigation.  I am collaboratively trained, as is Jace M. Padden of our office. The collaborative process allows a couple to end their marriage with dignity and respect and is a far more preferable method to litigation, provided both parties are emotionally capable and committed to the process.  

        Read Jace Padden's blog about the process and advantages of collaborative dispute resolution in more detail. 

The holiday season is perhaps the most difficult time of year for clients going through a divorce (or even those who have previously gone through one), especially if the client has a minor child or children.   Like clockwork, as the major holidays come and go, so too does the barrage of phone calls to my office regarding the holiday visitation schedule.  During this sometimes already stressful time of year, disputes over the holiday visitation schedule are often what put domestic clients over the edge.

So what can a domestic client do to lessen the stress associated with the holiday season (at least from the perspective of the holiday schedule)?  Here are a few tried and true suggestions: 

1.         Negotiate a thorough, detailed schedule at the beginning.  Often, clients are in a rush to negotiate and sign their Settlement Agreement or initial Court Order, and, in so doing, they skim over important details such as what time holiday exchanges are to occur or where holiday exchanges should take place.  Some clients are so eager to complete these documents (or are so convinced that they will maintain a good “working” relationship with their soon-to-be-ex) that they resort to the almost always fatal “the parties shall equally divide the holidays on an annual basis pursuant to a mutually agreeable schedule” (or some variation thereof).   While I have had clients who are able to work out the schedule by themselves year after year, unfortunately, most parents are not able to do this.  As a result, from my perspective, it is almost always advisable for a client to start out with a detailed, default schedule that the parties can then agree to vary from, rather than to agree to a loosey-goosey schedule (or none at all).      

2.         Discuss annual holiday plans early and often and put any deviations in writing.  If you are one of those clients who have the “divide the holidays as the parties mutually agree” language, or if you and the other parent simply wish to deviate from your written schedule, the most important things to do are to start discussing the holiday schedule early and to put any deviations in writing.  By commencing the “negotiations” early, any disagreements are more likely to be worked out before the holiday actually arrives.  Further, putting the outcome of any discussions in writing (email is really great for this!) reduces the likelihood that you’ll drive to Virginia Center Commons at 5:00 p.m. on Christmas Day to exchange little Johnny only to be met by an empty parking lot.

3.         If the schedule truly isn’t working, take legal steps to have it changed.  If, each year, the schedule in your existing Settlement Agreement or Court Order causes screaming and/or crying, it may be time to meet with a domestic attorney to investigate having the schedule modified.  After all, your children (and you) deserve to have happy holidays!    

     Child custody is the most difficult issue in a divorce. A variety of combinations exist to protect the best interests of the child. If the mother or father cannot agree on a custody arrangement, a judge will decide what is in the child’s best interest. In these cases, absent an appeal to a higher court, the parties must abide by the judge’s decision.             

       The Courts look exclusively at the child’s best interest, and no longer prefer the mother over the father in custody issues. The Courts may conduct a study of which home environment is best suited for the child and may even appoint a guardian ad litem for the child during the custody battle. A guardian ad litem, an independent attorney who is appointed to review the matter, acts in the best interest of the child. Be forewarned though, the parents may have to pay the guardian’s fee as well as their own attorney’s fees. A custody battle can be very expensive and emotionally devastating for both sides, win or lose. Be prepared!

Technology can be wonderful.  New inventions often make our lives easier or more entertaining (or both).  Technology, however, can have negative attributes as well.  As members of our current society, we must educate ourselves equally on the benefits and pitfalls of the newest devices and trends.

Nowhere is this clearer than in the context of family law, especially with regard to divorce and custody proceedings.  In today’s technology-laden world, there have been a number of inventions (e.g., email, text messaging, EZPass, Facebook) that have unintentionally come to the aid of the average person going thru a divorce (as well as his or her often reluctant attorney).  There have also been a number of inventions that have served to “put the nail in the coffin.”  Indeed, depending upon whether you are the plaintiff or the defendant in a divorce action, technology may be a blessing or a curse.

One piece of technology that has very recently caused a lot of buzz in the divorce world is the “Find My Friends” application on the new iPhone 4S.  “Find My Friends” was intended to allow its user to track the location of those friends who have agreed to allow the user access to this information.  However, according to recent Internet chatter, “Find My Friends” also allowed a husband who suspected his wife of cheating on him to surreptitiously “verify” that she was engaging in an inappropriate relationship, or at least lying to him about where she was going from time to time.  He gave her a new cell phone with the application already loaded on it (and enabled).  When the wife left the house, the husband was able to track her location, unbeknownst to his spouse.  Now, he has screen shots which, apparently, he will attempt to use in Court to corroborate her visits with an alleged paramour.  The husband was so pleased with his “success” with the application that he posted what happened on a blog and thanked iPhone and “Find My Friends.”

While I suspect there might be issues with the admissibility of the husband's "evidence" (and maybe even potential criminal implications for his own behavior), I think at least one message is clear: educated use of technology is a must.  After all, one may not want others, including a divorce court or, better yet, the entire world, to find his or her friends.

Our laws which govern spousal support were modified on July 1, 1998 in Virginia. The Court can now award rehabilitative spousal support for a period of time based upon certain factors such as the education, training, employment history, decisions made regarding the care of the children, and physical and mental health of the party seeking support. The parties can also contract, in a Property Settlement Agreement, to any arrangement of spousal support they desire.  If the parties do not reach an agreement regarding spousal support, the Court can set support for a period of time or until the death of one of the parties, remarriage or cohabitation pursuant to Virginia law.

On the other hand, child support is governed by statute and is based on the gross incomes (real or imputed) of both parents. If one parent is earning substantially less than he or she could reasonably earn, additional income may be imputed to that parent. The child support guidelines are designed to provide a child with the amount of support needed to provide for his or her food, shelter, clothing, medical needs, etc. based upon the parents’ joint gross income. Generally, payment of child support extends until the child graduates from high school or reaches the age of nineteen, whichever occurs first.

          Often in a divorce action, the departing spouse, remorseful, may be eager to end the marriage. In his or her eagerness, this spouse will often make a more than generous offer to settle the domestic issues. In these cases, I often urge my client to look to the future, not to the past, and (if the agreement is appropriate) to accept the offer. Many times, the quicker the division is reached, the better. Settlement allows emotions to calm down, and the bulk of the family financial resources to remain with the family rather than be spent on attorneys and other costs of court such as expert fees, court reporter fees and the like.             

        Once the Property Settlement Agreement has been thoroughly reviewed and executed by the parties, the Agreement will stand unless a spouse can prove that he or she signed the Agreement under fraud, coercion or duress. The legal theories of fraud, coercion and duress are difficult and costly to prove. The Property Settlement Agreement is much like marriage - - not to be entered into lightly or ill advisedly. Again, my advice is that both husband and wife have separate legal counsel to prepare and review the Agreement before execution.