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 ensure that your rights and the rights of your children are protected.
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 resources even if they are entitlements that are granted to you by virtue of your service to your country. The military has regulations establishing interim child support guidelines and each branch of the service has different child support guidelines.
Courts will look at BAH, separate ration, hazard pay, special pay, combat pay, bonuses, and GI benefits when calculating support. The theory is that the military provides these entitlements to soldiers to help pay for the basic needs in life.
If you are not 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.
Being in the military is not always a simple 9-5 work schedule. In fact, your schedule may change every few months. You will want to include language in your agreement that will allow you to see your child for a specific amount of time each week or month. It should be contingent upon your availability.
In certain situations, a Family Care Plan will be required for military families.
A Family Care Plan should also specify provisions for leave and vacations, provisions for surrogate visitation during deployment, methods of communication during deployment, provisions for your return, and provisions for an out-of-area transfer.
Servicemembers Civil Relief Act (SCRA)
The Servicemembers Civil Relief Act (SCRA) was passed in 2003 in order to combat a disturbing trend of military personnel having their child custody agreements altered during deployment resulting in a loss of parenting time.
The language of the law specifies that “custody only reverts to the original order when it is in the best interest of the child, which is the standard upon which all custody determinations are made in the United States.”
The SCRA grants the service member the right to postpone civil court hearings when military duties materially affect the ability of the service member to prepare for or be present for civil litigation. Under the law, stay court proceedings also include administrative hearings. Application for stay does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defenses.
When filing for divorce while one spouse is serving in the military, you need to make sure that the court you choose has jurisdiction. You must file for divorce in a state where the military spouse is domiciled, where the military spouse is a resident, or where you and your spouse 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: the address you use on your federal tax return where you own a home, where your immediate family live, where you register your car, where you register to vote, or the residence you declare in documents such as a will or insurance policy.
Some states let 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.
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.
When a military member faces divorce, one of the largest concerns is how those benefits will be distributed, which is outlined by the Uniformed Services Former Spouses’ Protection Act (USFSPA).
A military pension is subject to division by state courts in divorce and property division proceedings. A pension is neither mandated nor automatic and is up to the states 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 much overlap 10 years of creditable military service.
Unfortunately, there is no clear picture of how a military pension is to be divided.
Uniformed Services Former Spouses’ Protection Act (USFSPA)
In 1982, the USFSPA was enacted to outline how retired pay benefits would be distributed. Military pensions are subject to division by state courts in divorce and property proceedings. A military pension is neither mandated nor automatic. It is discretionary with each state whether it is marital or community property that is divisible.
Military medical insurance, known as TriCare, is available to military members and their dependents.
Upon divorce, the 20/20/20 rule is used to determine whether a former spouse is eligible to continue receiving TriCare coverage. The parties must have been married for 20 or more years, and 20 years of the marriage must have overlapped 20 years of creditable service.
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.
If a former spouse meets the first two requirements of the 20/20/20 rule, but only has 15 years of active-duty service that overlapped the marriage, then the former spouse is 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.
Following the divorce, the former spouse 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 – having been enrolled under the military member’s social security number during the marriage.
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