Lawyer Monthly Magazine - July 2019 Edition

MILITARY FAMILY LAW What is the Servicemembers’ Civil Relief Act and howdoes it relate to military personnel and divorce? The Servicemembers Civil Relief Act (SCRA), formerly known as the Soldiers and Sailors Civil Relief Act (SSCRA), was enacted in 2003 and significantly expanded the protections provided to people entering the military, called to active duty and deployed service members. Many of the provisions in the SCRA can be applied to protect the rights of service members who are going through a divorce or family law matter. The key protections the SCRA provides to service members going through a divorce are as follows: • In the context of a family law matter, if a default judgment was entered against a party and the outcome negatively affected somebody because they were not present to defend themselves in the action, the court has the authority to reopen the matter. • If a party is deployed and cannot be present for the proceedings to defend themselves, the proceedings can be postponed, or stayed, until they return. This can be especially important when issues like custody need to be resolved. PENSION SHARING How is a pension split during a divorce? A pension is divided in divorce just like any other marital asset in an equitable division state. The first question is whether the pension interest accumulated during the marriage? If so, the marital portion is divisible in divorce. Typically, the division is implemented through the use of a Qualified Domestic Relations Order (“QDRO”). Are there ways for clients to protect their pension or retirement assets during divorce? A prenuptial agreement can help a party protect their pension interests. The key is that the prenuptial agreement would need to be completed before the marriage and in a matter that is procedurally and substantively fair. This means that both parties need to have separate legal counsel. The prenuptial agreement also has to be entered into freely, voluntarily and without undue influence or duress. Both parties also have to engage in a full and fair disclosure of their assets and debts. Past that, and if there is no prenuptial agreement, if a portion of the retirement assets were accumulated prior to marriage, this can often be traced by a forensic account. ALTERNATIVE DISPUTE RESOLUTION Is alternative dispute resolution growing in prominence in divorce and family law matters? More parties are seeking to resolve their divorce and family lawmatters outsideof court. Many parties try mediation. Mediation can be voluntary or some courts can order parties to participate in mediation. Other parties are trying collaborative family law. In collaborative family law, each party hires a collaborative lawyer on a limited scope representation agreement where the lawyer can only represent the party in the collaborative process and cannot litigate the matter in court. In the collaborative process, other professionals (divorce coach, financial neutral and child custody professional) work to get the parties toward settlement. Do you think parties should try to resolve their divorce or family law matter outside of court? I do think settlement outside of court is worth the try for parties. If parties can settle their divorce outside of court, data shows that parties are more apt to comply with a settlement agreement versus a court order. This can result in fewer repeat visits back to court. It can also help parties who have kids keep tensions to a minimum so that they can co- parent more effectively with one another. Besidesdivorce,whataresome of the other most common types of family law cases? Paternity cases are really on the rise due to increasing out- of-wedlock birth rates. These are cases involving custody and child support between unmarried parents. Next to divorce, these may be the most common type of family law matters. We also help clients with adoptions, guardianships, surrogacy agreements, domestic violence matters, prenuptial agreements and other family law matters.” 81 SUPER LAWYERS JUL 2019 www. lawyer-monthly .com