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ILLINOIS JUDGES ASSOCIATIONMILITARY SERVICE & THE LAW11 DECEMBER 2009TOP 15 THINGS JUDGES SHOULD KNOW: MILITARY SERVICE & THE LAWSTATE LAWS(1) Military-Family Amendments to Marriage and Dissolution of Marriage ActThe Illinois General Assembly recently passed legislation that affects dissolutions of marriage and custody determinations for military families. The legislation provides that the court shall determine custody in accordance with the best interest of the child, and shall consider all relevant factors including, among others, “the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed.” Public Act 96-0676. In addition, the legislation guarantees that a party’s failure to comply with the court’s custody, visitation, or parenting time orders may not, by itself, be sufficient to justify a modification of a prior custody order if the sole reason for the failure to comply is the party’s military deployment. (2) Pay Differential to Public EmployeesThe Military Leave of Absence Act, 5 ILCS 325/0.01, et seq., provides that public employers (defined to include the State of Illinois and local government employers, including school districts) must grant leave to any full-time employee who is a member of any reserve component of the United States Armed Forces or the Illinois State Militia for any period actively spent in military service, including basic training, special or advanced training, and annual training. In addition to granting leave, the Act requires employers to protect an employee’s benefits and, in certain situations, to provide a pay differential between the employee’s regular compensation and military basic pay. Basic pay is the main component of a servicemember’s salary. A servicemember’s grade (usually the same as rank) and years of service determines the amount of basic pay received. (3) Property Tax Relief for Returning VeteransIllinois law provides a homestead exemption to eligible returning veterans. The exemption is a one-time $5,000.00 reduction in the equalized assessed value (EAV) on the veteran’s primary residence. 35 ILCS 200/15-167(b). The $5,000.00 reduction to EAV is to be provided “only for the taxable year in which the veteran returns from active duty in an armed conflict involving the armed forces of the United States.” Id. The exemption for returning veterans is in addition to any other homestead exemption provided in Article 15 of the Property Tax Code. 35 ILCS 200/15-167(d). Returning veterans can claim the exemption by filing Form PTAX-341 Application for Returning Veterans’ Homestead Exemption with their county assessment office. The determination of eligibility is made by the county assessment office. 35 ILCS 200/15-167(c). Additional information on this benefit is available on the website of the Illinois Department of Revenue, http://www.revenue.state.il.us/LocalGovernment/PropertyTax/taxrelief.htm (4) Illinois Human Rights ActThe Illinois Human Rights Act makes it unlawful to discriminate against an individual because of their military status in connection with employment, real estate transactions, access to financial credit, and the availability of public accommodations. “It is the public policy of this State … [t]o secure for all individuals within Illinois the freedom from discrimination against any individual because of his or her … military status … or unfavorable discharge from military service in connection with employment, real estate transactions, access to financial credit, and the availability of public accommodations.” 775 ILCS 5/1-102(A). (5) Veterans Preference in Public Works – Often OverlookedThe Veterans Preference Act, 330 ILCS 55/1, provides that in all public works undertaken or contracted for by the State of Illinois or any political subdivision, “preference shall be given to persons who have been members of the armed forced of the United States….” Further, every contract shall contain terms providing for veterans preference. 330 ILCS 55/2. The failure to comply is a criminal law violation, albeit a petty offense, enforceable by the Illinois Counties State’s Attorneys. (6) Servicemembers Killed in the Line of Duty: Estate Planning AspectsThe Line of Duty Compensation Act (LODCA), 820 ILCS 315/1, et seq., provides a financial benefit to the designated family members of an Illinois member of the Armed Forces killed while on federal active duty. The Illinois National Guardsman’s Compensation Act (NGCA), 20 ILCS 1825/1 et seq., provides a substantially identical financial benefit to the designated family members of a member of the Illinois National Guard killed while on State active duty. A claim for compensation is made by completing and filing a designated form with the Illinois Court of Claims. (7) Veterans and the Criminal Court SystemThe Illinois General Assembly recently passed legislation that created a task force to study whether veterans courts should be mandated throughout Illinois circuit courts. This legislation, Public Act 96-0093, provided that it is “the intent of the General Assembly to create a Military and Veterans Court Task Force to investigate and develop a statutory basis for a specialized military and veterans court system….” Public Act 96-0093 at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=096-0093. The idea of diversionary courts is laudable, recognizing that placement in therapy can address root causes of criminal behaviors better than incarceration and result in lower recidivism rates. Similar programs already exist in the form of Drug Courts or Mental Health Courts. In fact, recent legislation was enacted entitled the Drug Court Treatment Act, Public Act 96-0776, mandating all Chief Judges of the circuits to create drug treatment courts. FEDERAL LAWS(8) SCRA and the Supremacy ClauseIt is important to note that the protection of the Service Members Civil Relief Act (SCRA) “… applies to any judicial or administrative proceeding commenced in any court or agency in any jurisdiction subject to this Act.” 50 App. U.S.C. 512(b) (emphasis added). The language of the SCRA defines the term “court” to specifically include “any political subdivision of a State,” which would include a county, municipality, city, town, township, or other special district created pursuant to State law. 50 App. U.S.C. 511(5). This law tucked in the appendix at the end of the United States Code has a far-reaching impact by operation of the Supremacy Clause of the United States Constitution, article VI, paragraph 2. Accordingly, the SCRA protections apply with as much force to federal and state court proceedings as to proceedings of units of local government, including among others, zoning board hearings, property tax assessment hearings, and building code review hearings. (9) Affidavit of Military ServiceBefore any default may be taken, the SCRA requires the plaintiff to sign and file an affidavit with the court or agency stating whether or not defendant is in active duty military service, or whether plaintiff is unable to determine the military status of defendant. 50 App. U.S.C. 521(b). To facilitate SCRA searches, Department of Defense’s Defense Manpower Data Center has developed a secure public internet access system through which any requester can quickly determine whether an individual is currently in the Armed Forces. The website for SCRA queries is https://www.dmdc.osd.mil/scra/owa/home. The report generated via this website serves as the basis for an affidavit of military service. It is recommended that the generated report be included as an attachment to the affidavit of military service. (10) SCRA and Child Support Enforcement – DoD Directive Says Go to CourtThe protections of the SCRA are not absolute, and certain other competing concerns – such as child support and custody proceedings – can take precedence. Department of Defense (DoD) Directive 1327.06 (updated 16 June 2009) provides that when a servicemember requests leave due to the need to attend hearings to determine paternity and/or establish child support, leave will be granted, unless the servicemember is currently deployed in a contingency operation or in a situation where the exigencies of military service require a denial of the request. (11) Military Service Affecting Statutes of LimitationThe SCRA provides that the period of a person’s military service cannot be counted against them in computing the period of limitations for the bringing of any civil legal action or proceeding. 50 App. U.S.C. 526. This is a two-way street, as the period of active duty military service is excluded in computing the period of limitations provided for the bringing of any civil legal action or proceeding either by or against a member of the armed forces. (12) SCRA Judgment Enforcement – Misconception DebunkedDoes the SCRA prevent the enforcement of prior orders? NO. The SCRA has very limited effect on the enforcement of prior orders; however, a servicemember can seek relief from prior orders, 50 App. U.S.C. 524, but it is the servicemember’s duty to do so and show entitlement to relief. (13) Entitlement to Military Retirement Pay for Former SpousesThe Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. 1408, recognizes the right of state courts to distribute military retired pay as marital property and divide it between the spouses, and also provides a method of enforcing these orders through the Department of Defense Finance and Accounting Service (DFAS). (14) Employment / Reemployment Rights of Reserve Components of Armed ForcesThe Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. 4301 et seq., was enacted in 1994 to provide a comprehensive framework for the rights and obligations of the employer and the employed military member. The USERRA statute has the following main purposes: (15) HEART Act of 2008The Heroes Earnings Assistance and Relief Tax Act (HEART Act) of 2008 provides tax benefits to military personnel. Prior to the HEART Act, a number of issues arose concerning income tax withholding and contributions to retirement plans related to pay differentials. The Act provides that any differential pay provided by the employer representing all or a portion of the wages the individual would have earned shall be treated as wages for purposes of income tax withholding under Internal Revenue Code Section 3401. See IRC Section 3401(h). Also, the Act provides that any employee receiving a differential wage payment shall be treated as an employee of the employer making the payment and the payment shall be treated as compensation for purposes of calculation of contributions and benefits. See IRC Section 414(u)(12). This is also true for individual retirement plans. See IRC Section 219(f)(1). SELECTED RESOURCESThe Armed Forces Legal Assistance (AFLA) website is a joint initiative of the Armed Forces legal assistance offices that aims to provide general legal information on a wide range of topics to the military and legal communities. http://legalassistance.law.af.mil/index.php
The Illinois National Guard (ILNG) Office of Judge Advocate General (JAG) hosts a comprehensive website includes information and links to a variety of resources, including the Servicemembers’ Rights and Benefits informational pamphlet. http://www.il.ngb.army.mil/
PRESENTER BIOGRAPHIESThe Honorable Ronald D. Spears is a Circuit Judge from the Seventh Judicial Circuit and currently serves as President of the Illinois Judges Association. Judge Spears is also a retired Colonel with the Illinois Army National Guard’s Judge Advocate Corps.
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