A military divorce refers to a situation where one or more people in the marriage are active military members or veterans in the Army, Navy, Air Force, or Marines. Divorce can be a difficult enough process, but if one or both people in the marriage are members of the military, splitting up can be even more complicated. In a military divorce, how child support, division of marital assets, and the way military benefits are handled can be different than a standard divorce involving non-military members.
Both military and civilian divorce law is very state-specific. How the court will handle child custody proceedings, division of property, and alimony will all depend on the state where the divorce is filed. To make sure you are protected in divorce proceedings, we suggest consulting military divorce lawyers in a city near you to get the best legal advice about your situation.
A divorce involving someone in the military is different from a divorce involving two civilian people for a few reasons. The first difference comes in the form of protections afforded to active military members by the Servicemembers Civil Relief Act (SCRA). The SCRA allows active servicemen and servicewomen to request a stay of proceedings — whether this means a stay of the overall divorce proceedings or any subsidiary hearing or judgments concerning alimony, custody of children, or division of assets. If the active military member is deployed to a foreign war, the stay of proceedings may last for the length of their deployment, and up to 60 days thereafter.
Additionally, there are rules governing the division of retirement pay and military pensions concerning military members, per the Uniformed Services Former Spouses’ Protection Act (USFSPA). The USFSPA enables state governments to work with the Department of Defense to provide direct payments from the military member’s pension to the former spouse.
According to the “10-10” rule, when a spouse has been married to an active military member for 10 years, and those 10 years were a period of time when the military member served in creditable fashion, military retirement payments to the divorced spouse may be requested directly from Defense Finance and Accounting Service (DFAS) rather than from the spouse directly.
This does not mean if you are divorcing a military member outside of this categorization that you cannot file for a portion of these retirement payments, but that you might need to proceed outside of these established boundaries.
The USFSPA only applies when the filing is made in the military member’s state of legal residence. In contested divorces, this matters a great deal, because if a filing is made in a different state than the one decreed or empowered by the USFSPA, that state court may not have the judicial power to enforce an order. In an uncontested divorce, this may be less important to the proceedings as both parties are agreeable.
The USFSPA, enacted in 1982, came largely in response to the fact that divorced military spouses were not statutorily entitled to a share of their former husband or wife’s retirement income. In effect, the legislation allowed for the construction of a legal framework to provide divorced military spouses the same rights as their civilian counterparts.
In general, income diverted from a retired military service member to a former spouse is not taxable for the retiree, but the income paid out to the former spouse is considered taxable income.
As in most divorces, states courts determine the range of allowable alimony or spousal support, as well as any child support necessary. In the state of Hawaii, for example, up to 60% of the military service member’s pay and allowances may be garnished or diverted in the interests of both spousal support or child support.
The USFSPA will allow for a direct disbursal of funds from retirement pay from the Department of Defense if a valid court order decrees that such payment must be made as terms of the divorce. State laws and state courts may dictate the terms. Certain aspects of a retirement or pension plan – including VA benefits or disability pensions — are typically protected from a spousal support calculation, with certain exemptions in each case.
As for health insurance (typically TRICARE when speaking of the U.S. Military), spouses usually lose coverage outside of very strict criteria. The “20-20-20” rule or “20-20-15” rules allow for divorced spouses to remain covered under TRICARE (long-term for the first rule and for one year for the second). The numbers reflect, respectably, the length of the marriage, the length of military service provided by the military member involved in the divorce and finally the length of overlap concerning the previous two terms. Even divorced spouses who are entitled to these benefits lose them if they remarry, or if they are afforded new health care coverage from an employer or another private insurer.
All children of military members who can still be considered an insurance sponsor via continued TRICARE eligibility retain their TRICARE coverage. This is true until the child turns 21 years of age (23 if enrolled in college), marries, or becomes an active duty military member themselves.
The amount of child support in a military divorce is similar to civilian divorces and is also handled by the respective state where the divorce is filed. Talk to your divorce lawyer about how child custody and child support are handled in your state.
Yes, alimony, or spousal support, can be part of a military divorce. Generally speaking, however, VA benefits, and any disability pay, may be exempt from spousal support payments. However, military pension payments may be divided in a divorce between the military member and the non-military spouse.
The process for divorcing a military member, or for a military member to divorce their spouse, is very similar to a civilian divorce case.
The plaintiff must serve the divorce action and a summons to the defendant. As mentioned above, military members have certain protections regarding a stay of proceedings in some instances. There are also the residency requirements to consider — for a military divorce to take place in Hawaii, for example, either the military member or their spouse must reside in Hawaii, or be stationed in Hawaii.
All provisions of the USFSPA must be observed per federal law during any division of assets, and state courts must abide by these provisions during a contested divorce which necessitates a hearing and subsequent ruling. The divorce decree may then be finalized.
This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified military divorce lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local military divorce attorney to discuss your specific legal situation.
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