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Legal Malpractice Issues

Legal malpractice risk is real in military divorce cases

On Behalf of | Jul 16, 2021 | Attorney-Client Relationship, Duty of Care, Legal Malpractice Law, Military Divorce |

To meet their professional obligations to their clients, attorneys who represent divorcing spouses must be highly knowledgeable about state divorce laws – and many lawyers are. Often highly skilled in the negotiation of marital settlement agreements and in courtroom advocacy, divorce lawyers work hard to get that to which their clients are entitled from their marriages.

A crucial aspect of every divorce is property division and the establishment of proper support so the parties can move forward with financial security into their new, separate lives. Divorce attorneys have the duty of reasonable care in their advocacy for their clients in the financial arena.

Military divorces have an additional, significant layer of complexity

When one or both spouses have served in the U.S. military, state divorce statutes are no longer the only relevant, applicable laws. Military divorces sit at a complicated intersection of federal military law and state family law. Any family lawyer representing a client in a military divorce must have an enhanced understanding of the unique legal matters that arise.

And because they sometimes do not and take on military divorces anyway, legal malpractice is not uncommon in this area. Simply, the lawyer may not know what they do not know about federal law that impacts their client.

Many divorce lawyers are eminently qualified to represent clients where neither spouse has served in the military. But taking on a military divorce without a reasonable understanding of its complexity can harm the client, often in the division of military retirement benefits (also called military pensions), Thrift Savings Plans (TSPs, similar to civilian 401(k)s) or other kinds of military benefits.

How legal negligence can happen in military divorces

For example, the divorce decree might split the military spouse’s monthly pension payments 50-50. Later – even years later – the military spouse could develop a full or partial service-related disability that qualifies them for monthly disability pay through the Department of Veterans Affairs (VA). The disabled veteran must waive their right to an equal amount of retirement benefits to qualify for VA disability, which most do because disability payments are tax-free, while retirement benefits are not.

The wrinkle is that the spouse who was receiving part of the monthly retirement payments under the terms of the divorce is not entitled to disability – federal law forbids it from being divisible in divorce. So, the monthly pension payment shrinks or goes away, along with the other spouse’s part of the payment.

If the lawyer in the original divorce does not understand this fairly complicated scenario unique to military divorce, they would not know to advocate in the divorce for an alternative source of payment should disability eventually become an issue, leaving the nonmilitary spouse without the monthly payments they need.

A 2020 legal malpractice case out of Maine provides another illustration. There, the state’s highest court affirmed a jury award of about $90,000 against the original divorce attorney for breaching his standard of care and financially harming his client, the wife.

Because of the husband’s Air Force service, the wife may have been eligible for the Survivor Benefit Plan (SBP), but her lawyer did not explain this to her nor did he “advocate for its inclusion in the divorce judgment, resulting in the opportunity for coverage being permanently lost.”

The complexity of applicable laws heightens a lawyer’s duty of care to their client in a military divorce. If attorney negligence causes financial harm to a client in this scenario, the lawyer may be liable for that loss in a legal malpractice, breach of fiduciary duty or attorney negligence lawsuit