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PREMOBILIZATION LEGAL PREPAREDNESS

87th LSO: A. Welcome B. Introduction C. What is PLP ? (optional) 1. Group and/or individual counseling 2. Preparation of simple wills and powers of attorney 3. Other advice, as needed, to facilitate the rapid mobilization capacity of RC members. PREMOBILIZATION LEGAL PREPAREDNESS.

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PREMOBILIZATION LEGAL PREPAREDNESS

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  1. 87th LSO: A. Welcome B. Introduction C. What is PLP?(optional) 1. Group and/or individual counseling 2. Preparation of simple wills and powers of attorney 3. Other advice, as needed, to facilitate the rapid mobilization capacity of RC members. PREMOBILIZATION LEGAL PREPAREDNESS Are You Ready? Prepared by the 87th LSO

  2. Why important? 1. We’re part of the Total Army Force--an Immediate and integral part of its strength 2. We must be prepared for rapid mobilization and deployment 3. Little time for personal affairs at mobilization 4. Advance planning helpful--easier to address potential problems now 5. More peace of mind and better soldier if prepared 6. Increased readiness Why Important? • Peace of Mind • Save Time • Be Ready to Serve

  3. Covers 3 major areas: 1. Premobilization Planning 2. Post-mobilization Planning 3. Dependent Affairs Inventory Legal Checkup Estate Planning Personal Affairs Employment Military Benefits Premobilization Planning

  4. 1. Make arrangements for the care, use, transportation, storage, safekeeping, and disposition of property. 2. Know (a) the difference between real and personal property and (b) how to treat each. 3. Urged to compile a list of all property! 4. Preparing a list is simply good personal/business planning! 5. Include location, serial numbers, insurance policy numbers, the amounts of overage in each policy, and other relevant information regarding the property. 6. Your list is your map to financial affairs/planning. Asset Inventory • Location, value, serial numbers, policy numbers / amounts, etc. • Your map to financial affairs and planning!

  5. Perform an annual legal checkup! 1. On your own 2. With a JAG attorney 3. Review legal and financial documents--including your insurance policies, deeds, titles to personal property, will and/or trust, powers of attorney, living will, etc. Legal Checkup • On your own • With a JAG attorney • Review legal documents

  6. 1. Proper planning eases the burden of death on the surviving family. 2. Explore distribution via a will versus the law of intestate succession. 3. Dying intestate may or may not be the result of poor estate planning: it depends on the situation, facts, and state. 4. Laws of intestacy vary from state to state. Estate Planning • Wills and Trusts • Powers of Attorney • Living Wills • Insurance

  7. 1. Will: a written directive to a personal representative to do something that you desire done. 2. It comes into effect at death. 3. Not always necessary to have one--particularly if single. Maybe not even if married! 5. Applies to “probate” property; generally not to insurance proceeds and property held as joint tenants. Will • What is it? • Always necessary? • To What Does it Apply?

  8. Advantages include possible $$ savings to the estate, control over who gets what and who does what, and peace of mind and satisfaction. READINESS! Will • Possible advantages? • Savings • Control • Peace of mind, morale, and soldier readiness

  9. Laws of Intestate Succession apply. Laws of Intestate Succession = the “default will” adopted by your State Legislature. They may or may not say what you would say if you took the opportunity to have your own will. Will • But what if I die without one? • Not the “end of the world” • Laws of Intestate Succession • May or may not be what you want

  10. Will • Three Primary Purposes: • Select Personal Representative • Dispose of Property • Select Guardians of Minor Children

  11. The first principal purpose for having a will is to determine who is going to administer the estate: called a personal representative (PR) (used to be called an executor). This is someone who gathers the assets together, inventories them, and distributes them according to your desires (as set forth in the will). The PR also pays the debts of the estate. Should be someone you trust and whose business judgment you trust. You may select one or more alternates to serve in the event the PR you choose cannot serve or continue serving. Will • Administer Will • Select Personal Representative (or “Executor”) and alternate • Trusted individual!

  12. The next principal purpose for having a will is to determine who gets your property upon your death. This is your chance to say where you would like your property to go--instead of where the State says it should go in its Laws of Intestate Succession. You may want to compare how you would like your property divided and distributed with the way your State has addressed the issue in its Laws of Intestate Succession. In many cases, the result may be the same. Be aware that, generally, there are special rules that apply to spouses, afterborn children, and children otherwise not named in a will. Will • Dispose of Property • Who receives? • Your desires • Special rules (children / spouses)

  13. 1. The third principal purpose for having a will is to name guardians for minor children. In many states, a will is the only legal document in which you can nominate the appointment of a guardian (or set of guardians) to serve after your death. 2. But understand: you nominate the guardian; the court appoints the guardian. 3. The court will generally choose the guardian you’ve selected--if he/she is willing to serve and is not otherwise precluded from serving. However, nominating a person does not guarantee he/she will serve. Check with your nominee and make sure he/she is willing to serve! 4. Consider what may happen if you don’t name a guardian in a will. Will • Select Guardian(s) • Minor children • You nominate; court appoints • Nominee willing to serve?

  14. 1. A will is a “living document”--one that has no legal effect until you are “gone” (whenever that may be). It doesn’t “expire” like a POA. 2. It should be read carefully and understood. It should be reviewed and--with the aid of an attorney--revised as necessary. Review your will frequently--perhaps at least once a year! An out-of-date will may be worse than no will at all! 6. Might a change: marriage, divorce, remarriage; significant change in tax laws, or value or type of estate; child born, adopted or dies; change of legal residence; change of mind or “falling out” with person(s) named in will 7. How changed? (major change--new will; minor change--codicil or amendment to will) 8. How not to be changed? (by crossing out and/or writing new information on an executed will) 9. Revoked by new will, with language revoking old will; or by intentionally defacing or destroying will. Will • A LIVING DOCUMENT! • Careful/periodic review • May need updating • Dangers of out-of-date will • How changed?

  15. Consider: 1. Size of estate (possible impact of federal gift and estate taxes) 2. Possible need for a trust (real property in more than one state, family business assets, multiple marriages, large estate, etc.) 3. Need for inclusion of testamentary trust UGMA/UTMA provisions in will, part. where there are children of a prior marriage 4. Residency of the soldier 5. Availability of self-proving clause 6. Proper execution of will 7. Caution that wills prepared at validations (formerly POMs) should be considered “holdover wills” and should be promptly reviewed and revised, as needed, upon return from mobilization / exercise 8. Don’t want wills that just give the soldier a “warm fuzzy”--want them to actually address soldier’s needs. Will • Other Considerations • Size of estate • Use of trusts • Legal residency • UGMA / UTMA • Insurance • “Holdover Wills”

  16. Living Will 1. May be a “living will” document, a durable health care power of attorney (to give another the power to make decisions regarding whether to turn off the machines), or an Advance Medical Directive (AMD) or “Directive to Physicians.” 2. Need to follow the statutory language dictated by your state of legal residence. 3. Availability and duration of living wills vary from state to state. 4. Majority of states now provide for living wills. Living Will • Available • Durable Health Care Power of Attorney • Advance Medical Directive (AMD) or “Directive to Physicians”

  17. 1. A living will allows life supports to be removed from a person (who has expressed the desire for such, or who has authorized another to make that decision) where the person is in a terminal condition or a persistent vegetative state. 2. That determination usually has be made by 2 or more physicians. 3. This is a significant decision regarding one’s “quality of life”--one that is very individual in nature. Living Will • Terminal condition • Persistent vegetative state • Opinion of two physicians • “Quality of life” issue • An “individual” decision

  18. A POA is a legal document that gives another person/entity (whom your trust) the authority to act for you in certain circs. It creates a “legal clone” of yourself. This is a helpful document for someone in the military who may be “out of the area” from time to time. Your obligations do not cease just because your away on military duty. This document allows someone to act for you--during your lifetime--when you can’t act for yourself. Power of Attorney • Legal document granting authority • To another • Whom you trust • To act for you • In certain circumstances • Your “legal clone”

  19. Powers of Attorneys (POAs) are of 2 basic types: (1) General--a broad/blanket grant of authority, covering most situations (2) Special--a more limited grant of authority, covering specified acts or situations. General POAs should only be given to individuals whom you trust and with whom you have a long-standing relationship. Their misuse could bring you a lot of trouble down the road. They are not the type of POA that you should typically be giving to your fiancée, friend, roommate, or even your spouse if your marriage (or your spouse) is less-than-stable. Power of Attorney • May be GENERAL or SPECIAL • Broad vs. limited grant of authority • Special POA generally preferable

  20. 1. POA: a potentially powerful document. It allows someone to act for you--while you are alive but absent or otherwise unavailable to act--and allows someone to treat that person as though he/she were you (and to bind you to whatever he/she does). 2. That person might sign a contract, run up a bill on your credit card, etc. 3. Be careful who you give it to! 4. And give NO MORE AUTHORITY than is REASONABLY NECESSARY under the conditions. 5. A POA is not always needed. If the person can act on his/her own, without the grant of authority, then the POA from you is not needed. Power of Attorney • CAUTION! • Potentially powerful • Be careful who you give it to • Give no more authority than reasonably necessary! • Not always needed

  21. A POA is not a panacea, and it is not always even accepted! It allows someone to act for you, and allows a third party to deal with that person/entity as though they were you; but it does not require or force anyone to act or accept the grant of authority. (1) Your grantee could choose not to exercise the authority given to him or her. (2) The third party may refuse to deal with your grantee--saying that it will only deal with you directly, or that it can only certain types of powers of attorney. Power of Attorney • Not a cure-all • Not always accepted • Allows but does not require (actions or acceptance)

  22. One such potential problem area is that of banks and other financial institutions. Often, they will require a certain form or format (often a form that they have on file) for acceptance. If the POA isn’t the form or format they are used to, they may not honor it. Also, they may not honor the POA if it is not specific enough for the transaction at hand. This is particularly a problem for GENERAL powers of attorney--since they usually do not specify a certain bank account or check number. Check with the financial institution with which you transact business, and find out if there will be any problems honoring your POA (before you’re mobilized). If so, make the appropriate arrangements to take care of your dependents and bills/obligations. (1) Joint account? (2) Allotment? (3) Automatic payment of bills? Power of Attorney • Particular problem areas: • Financial institutions ($$$)

  23. 1.. Another potential problem area is that of real estate transactions. Realtors, title companies, etc., are sometimes reticent to accept or honor POAs. Once again, that is particularly true of GENERAL POAs--since they may not specify the legal description of the real property in question--a typical requirement for any document (including POAs) that is or can be recorded with the County Recorder (to give notice to all the world of its contents in real estate matters). 2. If you will be buying or selling real property, you may want to get a SPECIAL power of attorney to cover that issue--or at least (as mentioned earlier regarding financial institutions) find out in advance if there will be any problem(s) with the POA you have. 3. You may also want to consider signing any documentation required for the transaction--in advance of your departure--so that your signature won’t be required to be obtained during your period of absence. Power of Attorney • Particular problem areas: • Financial institutions ($$$) • Real property sales / purchases

  24. 1. Another potential problem area is that of custody POAs--something that is useful anytime you are going to be away from your minor children for any period of time, and is required if you are required to have a Family Care Plan in the military. 2. These differ from those POAs granting a person the right to make health care decisions regarding a minor child. 3. A JAG-prepared POA should be valid in any state--due to the supremacy of Federal Law. But please be advised that the rules regarding POAs (including custody POAs) may be dictated by a given state. The state may limit the period of validity to 6 months (as does Utah); or dictate other appropriate rules. 4. There may be more than one kind of “custody”--custody for school purposes, custody to the exclusion of one or more of the parents, etc. POAs act only to allow an individual to step into the shoes of the granting parent/guardian in making the decisions addressed in the POA (to the extent otherwise permitted by law). Power of Attorney • Particular problem areas: • Financial institutions ($$$) • Real property sales / purchases • Custody POAs

  25. Lastly, there is the issue of revocation of the POA if you no longer need (or desire) to have the authority granted to another person. Power of Attorney • Particular problem areas: • Financial institutions ($$$) • Real property sales / purchases • Custody POAs • Revocation

  26. 1. Revocation of a POA is possible, but it is or can be difficult. It is often much easier to let the POA expire than to try to revoke it. 2. That is one of the major reasons why POAs in the military are normally limited to no more than one year in duration. Circumstances change; relationships (sometimes even with a spouse) can change; the need may no longer be there; etc. Divorce, or a “falling out” with a girl- or boyfriend, is all too common in the military. 3. A POA in the hands of someone with whom you’ve had a “falling out” with, or who you no longer trust, can be a dangerous document indeed--especially if feelings are hurt and there is any reason that the person with the POA may try to use it to hurt you. 4. Hence, sometimes you cannot wait until the expiration date of the POA to have it cease to be effective (and binding on you). 5. To revoke a POA, you must communicate your intent to terminate the POA to the grantee of the POA. Also, inform third parties (who may be) dealing with your grantee on your behalf; in addition to written notice to the known third parties, this may require published (constructive) notice to those you are not aware of. Power of Attorney • Revocation difficult • Expiration easier • Policy of limiting to one year

  27. The POA is valid until the EARLIER of the the 5 conditions listed in this slide. If the POA is not a “durable” POA, it ceases to be good when you (as the grantor) no longer are competent to act. Most military POAs--at least the General POAs--are durable. Power of Attorney • Valid until-- • Death • Subsequent incapacity • Expiration date • Date validly revoked

  28. 1. Determine NOW what might happen to you, your family, your employment (or business), etc., if you were suddenly mobilized and required to “be away” for a significant or indefinite period of time. 2. Would your family or business be able to function? Personal and Business Planning • Think NOW . . . • What will happen to me, my family, and my employment if I am mobilized?

  29. 1. Would you be close enough to take care of emergencies that arose? 2. Is there anyone trained / capable of doing so (of “running the business” ) in your absence? 3. Will you be able to communicate with your family or work? Frequently enough to take care of problems and needs? 4. Will you remember where things are or who needs to be paid or contacted? Who’s taking care of what in your absence? 5. Will you have time to think about personal, family, and /employment/business problems while mobilized? (Likely not.) 6. Will mobilization result in a reduced amount of income and standard of living to you and your family? 7. Have you planned for that? 8. Will you have to close down your business during your absence? Can you? 9. See (a) “What’s Next? A Guide to Family Readiness” (96th ARCOM); and (b) the USAR “Small Business Mobilization Planner”. Personal and Business Planning • Consider: • Distance • Reduced communication • Memory • Time • Possibly-reduced income

  30. 1. Make an inventory at home and at work. 2. Identify and locate critical documents regarding each item of property or each debt or obligation. 3. Locate, collect, and inform your family as to the whereabouts of important papers re birth, death, marriage, divorce, activation in the military, etc., of self and family. 4. Place/maintain them in a safe and accessible place (e.g., a safe deposit box, home safe, etc.). Personal and Business Planning • Assemble important documents • Know where things are • Make needed arrangements

  31. Things to Consider . . . Real estate holdings Insurance Bank accounts (access?) Allotments? Registering to vote Payment of debts / obligations Family Care Plan Customers, clients, patients, employees Personal and Business Planning

  32. Let’s talk about insurance. You all have the opportunity to have life insurance through the military if so elect to do so. This is inexpensive life insurance of up to a current maximum of $200,000/year. It’s called SGLI. You may also have or want to consider obtaining commercially-available insurance to supplement your SGLI or to otherwise provide for your dependents. We’ll talk a little about both for a few minutes. . . . Insurance • Military (SGLI) • Commercial Insurance

  33. There are various types of insurance--to cover various types of needs. Several are listed in this slide. Another important type of insurance not listed is automobile insurance. Your SGLI is the first kind of insurance listed--life insurance. Due to the nature of military service, this type of insurance is certainly something that ought to be considered. Insurance • Life • Health and Accident • Business • Fire • Mortgage • Other Insurance

  34. 1. Some of you may remember the days of the old “by law” designation on your SGLI. 2. Rather than having to name your beneficiaries specifically, you could write “by law” on the SGLI paperwork if the beneficiaries listed on the SGLI paperwork (in the order given) “worked for you.” 3. THOSE DAYS ARE GONE!!! 4. You can no longer make a by-law designation on your SGLI. There have been too many situations where the SGLI form was not accurate or updated, and insurance proceeds were being paid to “absentee parents” of single soldiers or to estranged spouses of married soldiers. 5. You must now designate BY NAME your beneficiary or beneficiaries. 6. Sometimes you may want to name a (testamentary) trust for a minor child as the beneficiary. If that is true, speak with a JAG officer, and he/she will help you with the language needed on the SGLI form. 7. You obtain the form from the admin. people in your unit. Insurance • Considerations: • No “by law” SGLI designation

  35. 1. Make sure that the beneficiaries that are named in any of your insurance policies or paperwork, military or commercial, are correct and up-to-date. 2. Has there been a change of circumstances in my life that would warrant a review and revision of the beneficiaries to my insurance policies? (e.g., marriage, divorce, death, falling-out, need or lack thereof, etc.) Insurance • Considerations: • No “by law” SGLI designation • Correct beneficiaries

  36. 1. Is the insurance coverage sufficient to address my family’s needs at this time and in the foreseeable future? 2. Have I considered the cost of a college education, the cost of domestic service and/or nannies in the event my spouse is required to work outside the home, the rate of inflation, the size of my family, the ages of my family members, my age, etc.? 3. Likewise, have I considered the impact of any other insurance policies (including mortgage), the expected date when my home will be paid off, etc.? 4. Do I need to increase or reduce the amount of insurance needed? Insurance • Considerations: • No “by law” SGLI designation • Correct beneficiaries • Adequate amount of coverage

  37. 1. What’s the appropriate payment or settlement option? 2. Is my insurance payable to a minor child? 3. Or do I need to establish a trust or UGMA or UTMA account for the child? 4. Do I want it all to be paid at once? 5. Or do I want it paid over time--so it isn’t “frittered away” in “short order”, or because of tax considerations, etc. 6. When is the need for the money greatest? Will delaying payment help or hurt the beneficiary--taking the time of greatest need into account? Insurance • Considerations: • No “by law” SGLI designation • Correct beneficiaries • Adequate amount of coverage • Appropriate payment option

  38. 1. Are there any clauses in your commercial insurance policy that preclude payment for death resulting from acts of war or other military situations? 2. Many policies include military exceptions or clauses that preclude payment for death from acts of war or under warlike conditions. 3. Check your policies. Get a letter from your agent which states that you are covered in time of war. See it in writing; some orally promise what they cannot deliver. 4. If you don’t, you may waste money on insurance that may not pay your family the insurance proceeds if you die in the course of your duties as a soldier. Insurance • Considerations: • No “by law” SGLI designation • Correct beneficiaries • Adequate amount of coverage • Appropriate payment option • Military exceptions / clauses

  39. Do this now. Don’t wait until you are mobilized to worry about these issues! Prepare yourself an your family while you still can. Consider the Following! • Need will? living will? POA? insurance? • Record of Emergency Data Card up-to-date? • Personal, business, and military records in safe, accessible place? • Make business/employment arrangements • Family knows about military benefits and entitlements?

  40. Now let’s talk for a few minutes about two very important laws that provide protection to you and your family in the event you are mobilized and called to active duty. One--the Soldiers and Sailors Civil Relief Act--provides you and your family legal and financial protections. The other--referred to as “USERRA”--provides you with employment-related protection. Post-Mobilization Protections • Soldiers and Sailors Civil Relief Act(“SSCRA”) • Uniformed Services Employment and Reemployment Rights Act(“USERRA”)

  41. See JA 260. SSCRA’s protection/relief begins when the soldier receives orders to report for extended active duty, and ends a short time after separation from active duty. It’s purpose is provide temporary protection/suspension; it is not intended to be a “shield” behind which the soldier may “hide.” Relief is not automatic; generally the soldier must trigger the Act by some act (SSCRA letter, etc.). SSCRA • PURPOSE: • Temporary protection / suspension • Not intended to be a “shield”

  42. SSCRA • BASIC PREMISE: • Not be penalized nor the subject of unfair advantage by another • Merely because you entered upon active military service

  43. Most provisions of the Act require the soldier to be “materially affected” to his or detriment (e.g., time, finances, etc.) by his/her military service for relief to be granted. The “material affect” requirement is the “heart” of the Act! SSCRA • Generally requires that you be MATERIALLY AFFECTED to your detriment by your military service Material Affect To Your Detriment Military Service

  44. Legal or procedural relief include: (1) the appointment of an attorney “back home” to request SSCRA protections when you are sued; (2) a “stay” of legal proceedings of up to 3 months after discharge from AD when you are materially affected by your military service such that you cannot return home to “defend yourself” adequately (due diligence, reasonableness, and good faith required); (3) an affirmative defense to the running of the statute of limitations (if affirmatively pleaded); (4) potential power of the court to prevent a judgment from being used by a judgment creditor; (5) possible injunction against the enforcement of a judgment; (6) possible modification of a judgment/decree on the grounds of changed circumstances; (7) possible reopening of default judgments where the soldier made no appearance in the case. SSCRA • AVAILABLE RELIEF: • Appointment of attorney “back home” to request SSCRA protections • Legal defenses/protections • “Stay” legal proceedings • Toll statute of limitations • Reopen judgments

  45. 1. The 6% interest-rate cap is a significant benefit in a time of high interest rates. You can have the interest rate on contracts lowered to 6% APR when you go on active duty (whether your military service is voluntary or involuntary). 2. The relief is automatic upon application therefor by the soldier; creditor can only avoid granting the relief by bringing a lawsuit and showing that the soldier was not materially affected (adversely) because of military service. 3. Relief is not available to government student loans, as per DOE memo, but “emergency forbearance” (or deferment) may be available. (Continued on next page: show next slide) SSCRA • AVAILABLE RELIEF: • Interest rate cap • Reduction to 6% APR • Automatic upon application by soldier • Not applicable to GSL loans 6%

  46. (continued) 4. Beware of attempts by creditors to circumvent law: forgive interest above 6% but increase payments under a revised plan = to the pre-SSCRA payments, refinance @ 6% rate with new finance charges, refinance @ 6% rate but require payments based on the # of years left on the mortgage rather than on the years agreed upon in the original financing arrangement, refusal to reduce interest until the soldier submits “sufficient proof” of premobilization income compared to current military income, submitting / threatening adverse credit reports, and accrue the difference in interest and add it to the life of the loan. (ALL ILLEGAL) 5. Be wary of entering into supple-mental post-entry commitments during negotiations with creditors. SSCRA • AVAILABLE RELIEF: • Interest rate cap • Forgiveness--not delay!!! 6%

  47. 1. No foreclosure or repossession unless a creditor first brings a lawsuit. The court can decide if the soldier’s failure to comply is materially affected by military service; and can prevent/delay foreclosure, defer or scale down payments, etc. 2. Soldiers and dependents can terminate pre-service lease with written notice. No need to show soldier was materially affected by military service. Only need to show that soldier entered into lease prior to AD service; that lease was for dwelling, profession, business, agriculture, or similar purpose of soldier (or dependents); and that soldier is currently in military service. Effective dates of termination: 30 days after next rental payment due for month-to-month tenancies, and last day of the month following the month in which notice is given to Landlord for others. 3. No self-help (nonjudicial) eviction of soldier or dependents for premises occupied as a dwelling (pre- or in-service lease) if rent does not exceed $1,200.00/month. Also, a stay of eviction may be possible for up to 3 months following soldier’s release from AD. SSCRA • AVAILABLE RELIEF: • Real estate protection • Foreclosure / Repossession Protection • Termination of Pre-Active Duty Lease • Eviction Protection

  48. Insurance premiums: Government guarantee of payment on life insurance owned prior to AD service; $10,000 policy cap; constitutes a “moratorium” on payments. Soldier required to file an application with the VA. Taxes: Income taxed only in state of domicile (legal residence). Property taxed in state of domicile (however, vehicles and their drivers must be licensed in either state of domicile or where stationed); no relief on real estate tax. Auto leases: Possible relief on automobile leases. Need to check intent: was the vehicle leased with the intent to purchase? Domicile: Can maintain your legal residency in your home state; don’t have to change legal residency to place where you are stationed (unless you want to do so). SSCRA • AVAILABLE RELIEF: • Insurance premiums • Income and personal property taxes • Automobile leases • Legal residency $$$

  49. If time permits at the “MOB Station,” the soldier may have the opportunity to contact creditors and seek an agreeable solution to his/her financial situation. However: (1) Don’t plan on having much time. (2) The soldier should be cautioned not to attempt any renegotiation of the financial matter until he/she is thoroughly familiar with his/her new military status (pay and benefits, rights to store/move property, etc.). (3) Be aware that any signed agreement after entering AD may constitute a waiver of SSCRA’s protections! SSCRA • CAUTION! • Don’t renegotiate obligations after entering active duty until familiar with new military status and benefits • A signed agreement after entering active duty may waive SSCRA’s protections

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