People get divorced every day and most family lawyers provide reasonable advocacy, advice and representation. State law governs dissolution of marriage, so most divorce attorneys develop knowledge and skill specific to their states’ applicable laws.
But when a current, former, or retired military servicemember or their spouse – or two military spouses who are married – walk through the law-firm door, legal representation becomes an entirely different ballgame. Because a divorce lawyer superbly represents their typical nonmilitary clients is not necessarily an indication that the attorney can reasonably protect the interests of a servicemember or a military spouse in divorce proceedings, unless they also have significant military divorce experience and knowledge.
Why is military divorce more complicated?
Federal law impacts certain aspects of military divorce. Those federal statutes and regulations can make a major difference in how a divorce settlement or state court divorce decree is interpreted or plays out in the future. Those consequences can be very harmful to one or both parties if the original attorneys did not have firm grasp of federal rules and how they interact with state family law.
What kinds of problems may arise?
Some complex issues in military divorce that an inadequately prepared or inexperienced lawyer could manage negligently, commit malpractice around or result in a breach of fiduciary duty to a military client or spouse:
- Division of military retirement benefits or military pensions, especially without accounting for the potential of service-related disability eligibility developing later in life
- Adherence to rules requiring precise language for military pension division in a marital settlement agreement
- Distribution of Thrift Savings Plans (TSPs), accounts for service members that resemble 401(k)s
- Preservation of Survivor Benefit Plan (SBP) eligibility and military health coverage rights of the civilian spouse (Tricare or Continued Health Care Benefit Program (CHCBP)), depending on length of marriage
- Compliance with a myriad of federal filing and other deadlines (and corresponding forms), some of which if missed will waive or reduce certain benefits for a client
- Inclusion of specific language in settlement agreement or divorce degree is necessary for certain benefits and rights, such as for SBP
- Understanding of which rules apply to servicemembers and which to members of the National Guard and Reserves (RC) as they may differ
- And others
Military family lawyers need robust and detailed calendar and tickler systems to keep track of deadlines and other timing issues – and avoid malpractice, according to a new Florida Bar Journal article linked to immediately above.
When a divorce attorney takes on a military divorce client without adequate understanding of what is involved, they may not comprehend how to protect that client’s financial and other interests. The significant knowledge and skill required raises the bar in defining what is reasonable legal representation in these cases. Military divorce law elevates the scope of the lawyer’s duty of care to their client above that of a traditional divorce.
Anyone who questions whether their military divorce attorney may have given poor advice or made mistakes in representation should speak with a legal malpractice lawyer as soon as possible to understand their options for legal remedies.