The military divorce process can be highly nuanced, with many service members facing emotional and financial strain. It may be particularly challenging for retired military spouses.
In 2017, the Uniform Services Former Spouses Protection Act (USFSPA) allowed state courts to treat military pensions as divisible property during divorce proceedings. Nonetheless, new federal restrictions in 2017 altered how these pensions are divided across America.
Getting Divorced In The Military
Divorcing can be a tumultuous experience for any couple, but it can be especially challenging for military spouses. Service members often deploy and live far away from their families, making the divorce process all the more complicated.
One issue that may make getting a divorce in the military more complex is establishing jurisdiction (authority) over the case. This typically refers to a state where either one or both spouses has legal residence.
Another pressing concern is dividing a military pension during divorce. The Uniformed Services Former Spouse Protection Act dictates how these benefits are calculated and distributed.
Divorce lawyers in the United States can assist you with filing for divorce and dividing your military pension. They also assist with filing for alimony or child support and creating a custody plan for your children.
Once the paperwork has been filed, a judge will make an order of proceedings. This could involve mediation or even a hearing in front of the courtroom.
The timeframe for a military divorce can vary depending on the state’s laws and how quickly the service member responds to being served with divorce papers. Active-duty service members also have additional time under federal law known as the Servicemembers Civil Relief Act to respond to divorce papers.
Although a military separation or divorce is not permanent, it can still be an emotionally charged period for both service member and spouse. A divorce lawyer can guide the process and reduce stress by helping the couple come to an amicable agreement on what should happen next.
Military spouses have access to free legal counsel and representation at their installation. Furthermore, base legal offices can assist service members and their non-military spouses understand the legal repercussions of divorce, such as how to claim retirement benefits or other benefits.
Military Spouse Divorce Lawyer
If you are a service member or spouse of a military service member and seeking divorce, consult an attorney who specializes in military divorces. They understand the unique challenges faced by service members and can craft a decree that safeguards your benefits such as retirement and disability pay.
Legal assistance attorneys located on bases across America and abroad can offer advice and guidance. However, these attorneys cannot represent you in court, so it’s essential to hire a lawyer who will be by your side throughout every step of the process.
Another issue is the fact that service members often serve in multiple locations and their spouses may not always meet residency requirements to file in their home state. In such cases, a judge might allow couples to use either their original jurisdiction where they enlisted in the military or where their husband or wife is currently stationed.
Finally, military pensions can have significant financial repercussions in divorce settlements. A non-military spouse could lose their share of a service member’s retirement if they do not enroll in the Survivor Benefit Plan (SBP).
A military spouse’s share of their service member’s retired pay is determined by years of creditable service as a civilian and then compared to disability pay based on the service member’s disability rating. This distinction can be confusing, so make sure your lawyer understands how it could influence the outcome of your divorce case.
Additionally, the former spouses protection act may influence how retirement benefits are divided. For instance, if a former spouse was married for 10 years or more while their service member served on active duty, then they are eligible to receive part of that person’s retired pay through direct payments from DFAS instead of through court action.
How To Get A Military Divorce
If you and your spouse have decided it’s time for divorce, the process can be intimidating. This is especially true if both of you are military personnel – which is why seeking the guidance of an experienced family law attorney who understands how to handle these unique scenarios is so important.
When it comes to military divorce, there are various factors that need to be taken into account. These can include whether or not a separation period is required before the divorce can be finalized, what alimony payments and child support obligations exist, as well as how property should be divided during the process.
A service member’s pension can be an important asset when divorcing, as it provides a substantial sum of money to the former spouse which can be used for living expenses and child support.
However, it’s essential to remember that a military marriage must last at least 20 years and the service member served ten of those years for any benefits to be divided. This can be difficult due to frequent relocations between the service member and spouse throughout their union.
As such, the military retirement portion of a divorce can be particularly complex. That is why working with an experienced attorney is so important; they will guarantee that you receive fair distribution of your retirement benefits after divorce.
Unfortunately, too often military marriages and their attorneys make errors when dividing benefits. This may be due to a lack of understanding the law, relying on rumors and myths, or having an attorney unfamiliar with the military pension and division rules.
Military Divorce Pension
When divorce occurs for a military member, they may be eligible to receive part of their retired military pension. While this isn’t something everyone is entitled to, it’s essential that you understand your rights and seek legal counsel if this situation arises.
A military pension is considered community property in a divorce and can be divided as part of the settlement or court order. How much each spouse will receive depends on several factors, including how long the marriage lasted and whether or not the member met the 10/10 rule.
Many are misled by the 10/10 rule, which requires a spouse’s marriage to last at least ten years and have at least ten years of military service count towards retirement. However, this requirement can actually be simplified significantly and it’s not even close to being the only way a service member can divide their pension during divorce proceedings.
Another consideration is whether the military member has a Thrift Savings Plan, similar to a 401(k) or IRA and tax-exempt. This can be divided through court order so that part of it goes tax-free to the former spouse’s account.
However, it’s essential to remember that a Thrift Savings Plan is not the same as a pension. Therefore, if a military member and their spouse are going through divorce, it’s essential to address this matter early in the proceedings.
Though the laws governing this matter are complex, the federal law that permits division of military retirement pay is the Uniformed Services Former Spouses Act (USFSPA). This act permits state courts to apply their own family law principles when dividing this asset during divorce proceedings.
Military Divorce Entitlements For Spouse
If you’re thinking of divorcing your former spouse, there are several benefits that could be transferred. These include health care coverage, commissary privileges, installation housing and more.
You may be eligible for a share of your service member’s military retirement pay. This is an emerging method of dividing military pensions, which could prove especially helpful to former spouses who require the money.
To receive this benefit, the court must order the military to reallocate a portion of their service member’s disposable retirement pay to the civilian spouse. The amount awarded varies based on length of marriage but must be clearly specified in the final divorce decree.
Most of the time, this division of military retirement benefits is legally permissible – although it can be tricky to negotiate. A judge will take into account factors like marriage length and whether there was overlap with service by the retiree before determining if their former spouse has an insurable interest in their pension that justifies such an order.
When considering retirement benefits for service members, one of the most critical elements to consider is whether they were enrolled in the Survivor Benefit Plan (SBP) at their retirement. Without SBP coverage, retirement payments cease when the retiree passes away.
SBP (Service-Benefit Plan) is available for a monthly premium and ensures the former spouse receives ongoing payments if the retiree passes away before them. It’s similar to having life insurance on one’s military retirement, making it one of the more valuable former spouse benefits available.
The Uniformed Services Former Spouses Protection Act (USFSPA) is a law that safeguards former spouses and provides courts with authority to divide a service member’s military retirement pay. Unfortunately, this only applies to retired military members and not other types of retirement like BAH or SSP.
Common misconceptions about getting divorced in the military
There are several common misconceptions about getting divorced in the military. It is important to note that military divorces are subject to the same state laws as civilian divorces, but there are some unique aspects due to the military lifestyle. Here are some common misconceptions:
- Military divorces are handled by the military: The military does not handle divorces. Divorces are processed through the civilian court system in the state where the couple decides to file for divorce.
- The military will provide legal representation: While the military offers some legal assistance to service members, they do not provide legal representation for divorce cases. Service members and their spouses will need to hire civilian attorneys to represent them.
- Military divorces have different grounds for divorce: Military divorces follow the same grounds for divorce as civilian divorces, which are determined by the state where the divorce is filed.
- The 10/10 rule guarantees division of military retirement pay: The 10/10 rule is a requirement for the Defense Finance and Accounting Service (DFAS) to directly pay a portion of a service member’s retirement pay to their former spouse. It requires the couple to have been married for at least 10 years, during which the service member performed at least 10 years of creditable military service. The rule does not guarantee a specific division of retirement pay, but rather establishes eligibility for direct payment.
- Child custody is automatically awarded to the civilian spouse: Child custody decisions are made by the courts and are based on the best interests of the child. The military lifestyle and deployment history may be taken into consideration, but custody is not automatically awarded to the civilian spouse.
- Military benefits continue for the former spouse indefinitely: Military benefits, such as healthcare and commissary access, may continue for the former spouse under certain conditions, such as the 20/20/20 rule. This rule requires the couple to have been married for at least 20 years, the service member to have at least 20 years of creditable service, and the marriage to have overlapped the service by at least 20 years. Even then, benefits may be terminated upon remarriage or other changes in circumstances.
- The Servicemembers Civil Relief Act (SCRA) prevents all legal action during deployment: The SCRA offers some protections to deployed service members, such as delaying court proceedings in certain cases. However, it does not prevent all legal action during deployment, and a divorce can still proceed if the court determines that it is in the best interest of both parties.
Keep in mind that each situation is unique, and it is important to consult with an attorney experienced in military divorces to navigate the specific circumstances and requirements of your case.
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Steven attended the University of Texas at Austin, where he studied pre-law. His industrious nature and keen intellect earned him an impressive academic record, and he was subsequently admitted to the university’s prestigious School of Law. His unwavering commitment to defending the rights of individuals led him to focus on family law, where he believed he could make the most impactful difference.
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