Family Law Blog
Three Rivers - Family Law Blog

Eligibility to Receive Retirement Benefits:

Posted December 4, 2018

A spouse or former spouse of a service member is eligible to receive a portion of the service member’s retirement pay if he or she was the legal husband or wife (or former husband or wife) of a service member and was married as of the date of the court order. The court order must be a final decree of divorce, dissolution, annulment, or legal separation, or a court-ordered property settlement incident to the decree. The order can include payments of child support, alimony, and division of property.

In some cases, the former spouse may be eligible to receive payments directly from the military. According to the Uniformed Services Former Spouses’ Protection Act (USFSPA), the former spouse may receive direct payments from the Department of Finance and Accounting (DFAS) if the parties were married for 10 years or more during which the member performed at least 10 years of service creditable in determining the member’s eligibility for retirement (the 10/10 rule). If the couple was not married for the minimum of 10 years or if the service member did not give 10 years of military service during the marriage, the spouse or former spouse seeking a share of the service member’s disposable retired or retainer pay will not be eligible to receive payments directly from DFAS.

Direct payments to the former spouse cannot exceed 50% of disposable retirement pay. Even if a former spouse is awarded more than fifty percent of the retirement in the divorce decree, the direct payments under the USFSPA are limited to fifty percent of disposable retirement pay. In cases, however, where there are payments both under the USFSPA and pursuant to a garnishment for child or spousal support, the total amount of direct payments to the former spouse may not exceed 65% of disposable retirement pay.

10 U.S.C. § 1408(d)(2).

10 U.S.C. § 1408(e).


Jurisdiction of Child Custody Determination Under UCCJEA:

Posted November 6, 2018

Under MCL § 722.1201, a Michigan court has jurisdiction over initial custody determinations under the following circumstances. This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. A court of another state does not have jurisdiction under subdivision (a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 207 or 208, and the court finds both of the following:

  • The child and the child’s parents, or the child and at least 1 parent or a person acting as a parent, have a  significant connection with this state other than mere physical presence.
  • Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.

All courts having jurisdiction under subdivision (a) or (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under section 207 or 208. No court of another state would have jurisdiction under subdivision (a), (b), or (c). Subsection (1) is the exclusive jurisdictional basis for making a child-custody determination by a court of this state. Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child-custody determination.

In Michigan, the UCCJEA is inapplicable in both adoption proceedings and proceedings for authorization of emergency medical care for a child. The UCCJEA gives priority jurisdiction to a child’s “home state.” A child’s home state means: the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.

In the case of a child less than 6 months of age, [“home state”] means the state in which the child lived from birth with a parent or person acting as a parent. A period of temporary absence of a parent or person acting as a parent is included as part of the period. However, continuing jurisdiction may exist with a child’s previous home state if a parent or person acting as a parent remains in the state that made the initial custody determination. A Michigan court will recognize and enforce child custody decisions from another state if decided in conformity with the UCCJEA. A Michigan court may consult decisions from other state courts when interpreting the UCCJEA.

MCL 722.1201.

MCL 722.1103.

 

Division of Property Under the USFSPA:

Posted October 2, 2018

The Uniformed Services Former Spouses’ Protection Act (USFSPA)48 was enacted in 1981 to address service members’ former spouses’ interests in retirement and pension benefits accrued as a result of military service. The USFSPA authorizes state courts to treat military retirement as marital property that may be equitably divided during divorce proceedings, and provides a mechanism to enforce that division through the Department of Defense. Military pensions are considered marital assets in Michigan. It is important to note that the USFSPA creates no federal right to apportion retired pay. The USFSPA leaves it to the states and their courts to determine both whether and how much to divide military retired pay.

Under 10 U.S.C. Section1408. For military pensions and benefits covered under the Uniformed Services Former Spouses’ Protection Act (USFSPA), the judge should review the mandated guidelines for distribution eligibility as set forth within the Act, as well as the Act’s general principles discussed below.

Chisnell v. Chisnell, 82 Mich. App. 699, 706, 267 N.W.2d 155, 159 (1978).

 

 


Disclaimer