Military Family Law And Divorce Attorneys

When a couple decides to end their marriage while one spouse is serving in the military, divorce tends to get more complicated. There are specific rules about where to file for divorce, how to calculate child support, how to determine child custody, how to divide retirement benefits, and more that you need to know.

At Cordell & Cordell, we understand the unique challenges military families face during divorce. Our attorneys are able to handle these cases to help protect your rights and the rights of your children.

We once represented a military servicemember and successfully prevented the opposing party from obtaining any portion of their military pension. This was due to the fact that a certain state court lacked jurisdiction to distribute the military pension without our client’s consent. The opposing counsel was not aware of this jurisdictional issue. At Cordell & Cordell, we take the time to thoroughly understand the law and apply it beneficially for our clients. Let us do the same for you.

Child Support in a Military Divorce

Many states use a very broad brush in calculating income and usually start with a parent’s gross income. This starting point usually means gross income from all sources, even if they are entitlements that are granted to you by virtue of your service to your country. “Gross income” in many states includes both taxed and untaxed income. In addition, each branch of the military has its own regulations establishing interim child support guidelines, which are applied in the absence of a state court child support order or agreement. When calculating child support, courts will look at:

• BAH
• BAS
• Separate ration
• Hazard Pay
• Special pay
• Combat pay
• Bonuses
• GI benefits

The theory is the military provides these entitlements to servicemembers to help pay for the basic needs in life and, thus, the entitlements are considered as part of a servicemember’s “gross income”. If you aren’t currently paying support, depending on what branch of the military you are associated with, there may be regulations that mandate support of your family based upon your gross pay. These could be dictated and ordered by your commanding officer until child support is established either through a court order or a private agreement.

Custody in a Military Divorce

Being in the military does not always involve a simple 9-5 work schedule. In fact, your schedule may change daily, weekly or every few months. You should include language in any custody agreement that allows you to see your child for a specific amount of time each week or month, contingent upon your availability.

In certain situations, a Family Care Plan will be required for military families, and it should specify:

• Provisions for leave and vacations
• Provisions for surrogate visitation during deployment (i.e. visitation by third parties such as grandparents on behalf of the servicemember)
• Methods of communication during deployment
• Provisions for your return
• Provisions for an out-of-state transfer

Servicemembers Civil Relief Act (SCRA)

The Servicemembers Civil Relief Act (SCRA) was passed in 2003 in part to combat a disturbing trend of military personnel having their child custody agreements altered during deployment, PCS, or other active duty responsibilities during their absence, resulting in a loss of parenting time. The SCRA is federal law and applies to all state courts. Under the SCRA you can:

• Obtain a stay or postponement for any court appearances relating to family court issues if your military duty prevents you from attending proceedings relating to civil litigation
• Prevent your spouse from trying to change custody status during your deployment
• Avoid being given detrimental legal decisions due to long deployments

Under the law, the stay of court proceedings also include administrative hearings. It is important to note that, to obtain a stay, you must apply for the stay. Application for a stay does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defenses.

Suppose you’re in the Reserves or National Guard and called to active duty. In that case, you can request a stay if you cannot attend legal proceedings due to any duties associated with your military obligation.

Whatever your military status, it’s a good idea to speak with an experienced divorce attorney who understands military rules. If you anticipate a deployment, even if your custody case is not currently in litigation, it may be beneficial to consult with an experienced attorney prior to your deployment to determine what, if any, action you should proactively take prior to deployment to ensure that any attempt to move forward with custody, or to change your current custody schedule, can be stayed during your period of deployment.

Filing for Divorce While in the Military

Knowing where to file for divorce may be tricky if either you or your spouse are in the military. If you’re a servicemember seeking a divorce, you must file in the correct state and county. Each state has different residency requirements to meet to be eligible to file, such as:

• Length of residency
• Whether you need to allege grounds for divorce or can file a no-fault divorce action
• Whether you need a separation period before you are eligible to file for divorce and, if required, how long that separation period must be before you are eligible to file

In some cases, you may have a choice of states to file in. Either way, regardless of how many states in which you have eligibility to file for divorce, you must make sure you or your spouse meet any state requirements where you plan to file.

Military Divorce vs. Civilian Divorce

Divorce, whether military or civilian, is full of complexities. While many aspects of the divorce process are the same for both military and civilian divorces, there are a few important exceptions relating to military divorces. Such exceptions include, but are not limited to, the following:

• Division of certain government benefits
• Restrictions on the division of benefits
• Rules governing military retirement benefits
• Criteria needing to be met when determining property division

Two notable acts come with a military divorce; the USFSPA and SCRA.

Uniformed Services Former Spouses’ Protection Act (USFSPA)

In 1982, Congress passed the USFSPA to provide financial protection for some ex-military spouses relating to not just financial, but medical, commissary, exchange, and other military privileges if they do not remarry and meet specific criteria.

This law permits states guidance on dividing disposable military retiree pay as marital property during the divorce process. The government defines disposable military retiree pay as the total monthly retirement pay, subtracting some deductions regarding military benefits and other factors.

Talking about the USFSPA with your family law attorney is an important conversation because this law can have a substantial financial impact on you and your former spouse.

Jurisdiction in a Military Divorce

When filing for divorce while one spouse is serving in the military, you need to make sure that the court you choose has jurisdiction. Jurisdiction is essentially the authority of a court to hear and determine the outcome of a case. Typically, you may file for divorce in the state where:

• Where military spouse is domiciled
• Where the military spouse is a resident
• Where both spouses agree

Domicile is defined as your permanent home. You can keep a domicile even while not living there if you intend to return and permanently live there. Some indications of your domicile include:

• Address you use on your federal tax return where you own a home
• Where your immediate family lives
• Where you register your car
• Where you register to vote
• Residence you declare in documents, such as a will or insurance policy

Some states let military service members file for divorce if they are stationed there, even if the service member doesn’t intend to make the state a permanent home. The state may require the service member or their spouse to have resided in the state for a period of time prior to filing for divorce. A local attorney will know and understand their state’s unique residency requirements and whether your specific case will meet those requirements.

If you are stationed overseas or married to someone who is, you can still file in the United States. The proper place to file is the state where you are domiciled or meet the residency requirements.

How Your Divorce Impacts Your Military Pension

When a military member faces divorce, one of the largest concerns is how those military benefits will be distributed, which is outlined by the Uniformed Services Former Spouses’ Protection Act (USFSPA). The federal USFSPA often delegates how a servicemembers pension will be divided in a divorce to a state court. This means, that the state you file for divorce in will dictate how your military pension may be divided.

A military pension is subject to division by state courts in divorce and property division proceedings. A pension is neither mandated nor automatic and it is up to each state to decide whether it is marital or community property that is divisible.

State courts can order the direct pay of pension division awards through the Defense Finance and Accounting Services (DFAS). Direct payments cannot exceed 50% of the service member’s disposable retired pay, and the direct payments cease upon the death of the service member or the spouse. This is known as the 10/10 rule; 10 years of marriage must overlap 10 years of creditable military service for DFAS to distribute a former spouse’s share of the military pension.

Unfortunately, there is no clear picture of how a military pension is to be divided as each state has their own laws regarding the distribution of vested and nonvested pensions.

Healthcare After a Military Divorce

Whether a former military spouse can receive health benefits (TRICARE) usually depends on the length of the marriage, the length of concurrent marriage and military service, and how long the servicemember was in the military. This is where the 20/20/20 rule comes into play.

• Servicemember was in the military for at least 20 years
• Marriage lasted 20 years
• Military service and marriage overlapped for 20 years

If the situation meets these three requirements, the former military spouse will continue to be eligible for TRICARE unless they remarry. A remarriage means TRICARE eligibility ends.

If marriage and military service overlap 15 years, the civilian spouse can usually receive one year of eligibility for TRICARE after the divorce. Children can still receive TRICARE benefits, regardless of the length of the marriage, until age 21, or until age 23 if a college student. Exceptions also exist for children who have a disability and may be eligible after they turn 21.

The 10/10, 20/20/20, and 20/20/15 Rules Explained

Military divorce cases don’t follow 100% traditional state laws because there are other rules more suited to military life due to frequent moves and deployments. Some state laws will apply to the divorce process itself; however, the following rules will go into effect for family law cases.

10/10 Rule

If a couple is married for at least 10 years, the servicemember performed 10 years of military service, and the military spouse was awarded military retirement from the Defense Finance Accounting Services (DFAS), the 10/10 rule determines how the spouse is paid.

20/20/20 Rule

A military spouse who doesn’t remarry may qualify for specific benefits and privileges, including healthcare coverage, exchange, and commissary. Eligibility under the 20/20/20 rule means:

• You and your former spouse must have been married at least 20 years (first 20).
• You have a minimum of 20 years of retirement-creditable service (second 20).
• The length of the marriage overlapped at least 20 years of your retirement-creditable service (third 20).

20/20/15 Rule

If your marriage lasted at least 20 years, you served 20 years of creditable service, and the marriage overlapped the service period for at least 15 years, your former spouse can access limited benefits for a period of one year, subject to certain conditions.

20/20/20 Rule for Tricare

Upon divorce, the 20/20/20 rule is used to determine whether a former spouse is eligible to continue receiving TriCare coverage. If the rule is satisfied, a former spouse is eligible to receive TriCare as long as the former spouse does not remarry and has no coverage under an employer-sponsored health plan.

20/20/15 Rule for Tricare

If a former spouse meets the 20/20/15 rule, then they are eligible to continue coverage under TriCare for one year. That coverage ends if the former spouse remarries or has coverage pursuant to an employer-sponsored health plan.

Enroll in DEERS

A spouse who is eligible to retain Tricare coverage will need to enroll in the Defense Enrollment Eligibility Reporting System (DEERS) under his or her own Social Security number instead of remaining enrolled under the military member’s Social Security number.

Why Service Members Choose Cordell & Cordell

Cordell & Cordell has been championing the rights of men in family-related legal matters since 1990. Our knowledgeable and compassionate divorce attorneys understand the biases men may face during family court issues. Male servicemembers choose our law firm because they know we’ll aggressively fight for their rights and aren’t afraid to take a case to court.

At Cordell & Cordell, we understand the challenges faced by servicemembers during divorce proceedings. One major issue is that being assigned to foreign bases can make the divorce and custody process more complicated. Additionally, retirement can become complex if the servicemember has both active and reserve service or periods of deactivation. Servicemembers often do not anticipate the process taking so long, nor do they expect Basic Allowance for Housing (BAH) to be considered as income for support purposes. As lawyers, our goal is to simplify the process and provide you with the most efficient and streamlined experience possible. Another goal as your representative is to educate you on the interplay between military and civilian law as it relates to your situation so that you are able to make the best decisions possible for yourself and your children throughout the divorce and separation process and beyond.

Client Experiences

“Coming back from deployment, only to encounter challenges from opposing party with joint custody and child support, [Cordell & Cordell] listened to and understood the situation, conducted due diligence in research for preparation, and represented my position thoroughly and professionally to obtain a viable outcome.” – J. M.

“[My attorney] was a huge help. She got a [complex case] on my end, and time constraints were really tight. She really shone and helped with a timely end. [My attorney’s] work was, in my experience, unparalleled. She was attentive, realistic, and focused. I appreciated her understanding and being able to explain things in ways I’d understand and could apply. I was very satisfied with her work, knowledge, and experience.” — Jose A.

Standing With You on the Frontline of Your Divorce

The experienced divorce lawyers at Cordell & Cordell provide intelligent, aggressive divorce representation to fathers. We are a community of talented legal professionals who prioritize growth and success in all our life roles. Together we assure our clients the quality of representation we would expect for ourselves and our family members.

You don’t have to do battle with your spouse alone. The experienced family law attorneys at Cordell & Cordell are here to provide legal advice and to help preserve your rights. To schedule a consultation to discuss your legal issues, contact our law office at 866-DADS-LAW (323-7529) or via our convenient online contact form.