|
Fourth in a series of articles addressing Reserve and National Guard Issues in Family Court By Barry J. Bernstein* Throughout this series I have referred to the National Guard and Reserves collectively as the “Reserve Components (“RC”). This is a term used by the federal government. While there may appeared to be no distinction between them, that is only true for federal financial issues. However, there are significant difference outside of federal financial issues. A National Guard Lieutenant Colonel and a Navy Reserve Commander have different titles and branches of service, but the same pay grade (“O-5”). With identical criteria for points, they receive the same federal retirement pay through DFAS. All the RC servicemembers are paid through the Defense Finance and Accounting Service (“DFAS”). They are identical only for federal financial pay and retirement benefits. Reserves (Army, Navy, Air Force, and Marine) generally fall under their respective branch of the military. They are a creature of the 20th Century to augment the standing active military. Like their active-duty counterparts Reservists fall under Title 10 of the US Code of Laws. Records are kept with the branch of the Armed Forces, usually under a “Reserve” major command of the branch of service. The president is the Commander in Chief for Reservists. However, the National Guard is distinctive from the Reserves. The National Guard evolved from the “militia” in the 17th century, serving as a local force. Where the Reserves had individual augmentees, the Militia would appear as units near their home. The militia became the National Guard with the Dick Act at the at the turn of the century. The National Guard inherited federal statutes from the “militia” and is under Title 32 of the US Code of Laws (not title 10). The militia belongs to the states, unless activated into federal service. Until activated, the respective governor is the Commander in Chief. DFAS directly pays Guardsmen for federal military duty (drills, mobilizations and federal active duty). Basically, the federal government pays for the training in relation to the needs of the Army and Air Force as a miliary reserve, equal to the Reserves. Guardsmen take an oath of office to support and defend the federal and state governments. When the Guard is called to state active service (such as a hurricane or flood), they are in a non-federal status for pay or benefits, thereby no DFAS. None of that time applies to the federal retirement. The pay, retirement, and injury fall under state law. In South Carolina, additional benefits depend on when the service occurred (Pre- 1992 state pension up to $100 monthly; several periodic education benefits. Guard license plates and other state benefits exist without there being major financial impact. For purposes of Family Court, federal benefits are the same as the Reserves. However, in some state there are additional benefits of National Guard service. This may include a retirement pension, state fees waived, or education benefits. Dates of service determine the financial impact. Some, but not all states, have an additional militia, or State Defense Forces. In South Carolina it is the SC State Guard. There is no federal pay or benefit. Any benefits are in state law.
While these articles are intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction. * The author retired as a colonel after 34 years of service. He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.
0 Comments
Reserve and National Guard Issues in Family Court Part 3. THE MILITARY PARENT EQUAL PROTECTION ACT2/1/2023 Third in a series of articles addressing Reserve and National Guard Issues in Family Court By Barry J. Bernstein*
Special protections for servicemembers have been available for more than a hundred years. While well established for general litigation, the emergency interests and established procedures of family court frequently fell outside these protections. Temporary orders, tactical advantages from deployment and interim issues created overwhelming odds against the military parent. These inequities were addressed in South Carolina by the Military Parent Equal Protection Act. I have a particular interest in this Act because I drafted the legislation. I had Soldiers deployed without time to get relief from the Family Court. I personally dealt with DSS where they had an Airman agree to an increase in child support due to his increased income while deployed, only to have DSS not consent to reduce it when he returned to his old civilian income. I heard of Servicemen coming home to permanently lose custody to a “temporary” arrangement with the non-custodial parent, even using the deployment as the reason. I heard of Soldiers return for leave from a combat zone, only to have their child “unavailable” during the short period of leave. I drafted legislation, and a state senator introduced the bill. That senator retired, but it was reintroduced and passed into law in 2009. The entire intent of the Act is to avoid punishing military parents for being mobilized. These are the major provisions: Temporary modification of orders. If a Reservist or Guardsman is mobilized, then:
Expedited hearings. “If there is no existing order…of custody or visitation…the court shall expedite a temporary hearing…and provide other appropriate relief.” Reinstating old orders. Upon return from military service, the military parent's child support obligation prior to a temporary modification is automatically reinstated, effective on the date the military parent is released from service. Attorney fees. While attorney fees are always a consideration in Family Court, the Act specifically addresses this issue. Those that thwart the intent of the Act can be ordered by the Court, with contempt powers, to pay the other party’s attorney fees. I am very proud to have been a part this law taking effect. The title of the Act was named to explains its intent. Military parents should have equal protections, keeping them on equal footing in court, even when mobilized! I co-authored and article in the South Carolina Lawyer which gives a more in depth background for attorneys. (March 2012, “The Military Parent Equal Protection Act,” by Col. Barry Bernstein and Col. David Guyton While these articles are intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction. * The author retired as a colonel after 34 years of service. He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues. |
AuthorWelcome to our legal blog, where our experienced attorneys provide insightful analysis and practical advice on a range of legal issues. Our goal is to educate and inform the public on important topics in the legal field, and to provide a platform for open discussion and dialogue. Join the conversation and stay informed with our attorney's blog. Archives
April 2023
Categories |
RSS Feed
|
|
©2023BernsteinLawFirm,LLC
Powered by Steven Palmer Agency |