The lecture covered the Uniformed Services Former Spouses’ Protection Act (USFSPA) and changes that were made to it by the National Defense Authorization Act for Fiscal Year 2017. The changes have been referred to as the “frozen benefit rule.”

The frozen benefit rule requires that a spouse’s pension be divided in such cases is the member’s retired pay as if he or she had retired on the date of the court order dividing the pension as property. This will mean a smaller share of the service member’s monthly retirement benefits for many spouses.

“This is so even though he or she may rise in rank and years of service afterwards, resulting in a larger pension to be divided, which would then be discounted by using the ‘marital fraction’ to apply pension division to only the benefit which was acquired during the marriage,” Sullivan said.

The new rule only applies to service members who go through a divorce and property division while still serving in the uniformed services and those in the National Guard and Reserves who are still drilling. It does not change how benefits are split for retired service members.

Sullivan warned that the process in determining the split will be difficult for many attorneys, particularly those who don’t regularly practice military family law and suggested that this could increase the costs of military divorces as attorneys will need more time to understand the process.

“Since the new frozen benefit rule was written by Congress, which knows next to nothing about the division of property and pensions in divorce, there will be problems galore in applying it in the courts of most states,” Sullivan said. “And the harmful impact won’t be limited to spouses; members and retirees will feel the pain as well.”

Sullivan explained the new data and the documents needed to prepare a proper pension division order or clause under the new law. He then went over strategies attorneys can use when they are representing either the service member or the spouse. He even suggested how attorneys may avoid the frozen benefit rule with a separation agreement strategy or the use of a consent order for maintenance.

“It will have a very bad impact nationwide for many reasons,” Sullivan said. “Remember — these spouses and former spouses are the ones who followed the member around the world from post to camp to station, often losing the chance of obtaining a real job and significant retirement benefits due to mobility issues.”

Brooklyn Bar Association Has Busy CLE Schedule to Come

The BBA has no other CLEs scheduled for the month of February, but it’s calendar is filling up in the following months.

On March 13, Justice Sylvia Hinds-Radix will give the annual Civil Practice Law and Rules (CPLR) Update, during which she will give a comprehensive overview of the changes to the CPLR over the past year. Topics will include recent case law and Court of Appeals rulings.

The LGBTQ Committee is hosting a CLE on March 22 titled “Are You My Parent? Who is in My Family?: De facto Parentage, the Marital Presumption and the Second Parent Adoption: Recent Updates in the Law and How it Will Impact the Evolving Family Model.” It will cover the legal procedure that allows a same-sex parent, regardless of biological relationship, to adopt their partner’s biological or adopted child while maintaining the first parent’s legal rights.

The other three scheduled include a child custody CLE on March 29, an Article 81 skills workshop on April 6, and a CLE on labor law under President Donald Trump’s administration on May 1. For more information on these and other future CLEs at the BBA, go to brooklynbar.org.

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