Divorce and Property Division When a Spouse Is in the Military

August 26, 2012

Divorce and Property Division When a Spouse Is in the Military

As the U.S. military presence in Iraq and Afghanistan continues, many military families feel the pressures associated with having loved ones overseas on tours of duty. Frequently, people find they cannot take the strain and decide to divorce. The divorce rate among military families has been on the rise for over a decade. According to the Department of Defense, almost 30,000 military marriages ended in 2011 -- the highest military divorce rate since 1999. Military members or spouses considering divorce should be aware of the special issues that arise in military divorces and how military assets are divided in divorce.

Unique Issues in Military Divorce

Military divorce generally follows the same procedure as civilian divorce, but there are some unique issues that arise when one of the spouses is in the military. The Servicemembers Civil Relief Act is federal legislation protecting active-duty military personnel from civil actions while they are on duty and may not be able to respond. Divorce is a civil action, so notice is required and the service member may be able to put a hold on the action until he or she is done with service.

Military families may need to decide where they should file for divorce as well. For civilians, this decision is usually easy: they file where they reside. However, military spouses may have married in one state but then transferred to a base in a different state. It is more difficult to determine which court has jurisdiction to hear a military divorce case.

Child custody can also present a challenge when a parent is in the military, including where to file for children issues due to transfers, which may be different than where the general divorce case is filed. Further, any custody and visitation arrangements will need to address childcare plans for when the military parent is deployed, as well as possible designation of a substitute person to exercise visitation in place of the military member while deployed.

Dividing Assets

Property division can also be complex in a military divorce. Career military service members earn a lifetime pension after 20 years of service. In 1982, Congress passed the Uniformed Services Former Spouses Protection Act declaring those military pensions marital property, making them divisible if the couple should divorce. A person who was married to a military member is usually entitled to half of the pension earned during the marriage. Spouses can negotiate this amount, however.

Federal law only allows the pension plan servicer to pay up to half a person's pension amount to an ex-spouse, so if a state judge awards more than half the pension to the ex-spouse, the military member must pay it directly. Also, the plan servicer will not make payments to an ex-spouse if the marriage did not last 10 years, so if the court awards part of the pension to an ex-spouse in a shorter marriage, the service member must also pay this directly to the ex-spouse. There are some other avenues to receive direct payments from the plan provider in such cases depending on the circumstances.

Non-military ex-spouses who receive part of a military pension in the property division should also request that a deadline for the service member to apply for retirement benefits be included in the divorce decree, since the ex-spouse cannot collect until the service member applies for benefits.

Non-military ex-spouses may also want to consider negotiating a Survivor's Benefit Plan as part of the property division to replace pension plan payments should the military member ex-spouse die before the non-military ex-spouse.

Talk to a Lawyer

Divorce can be overwhelming and bring up many complicated issues. Military divorces can be even more of a challenge for those unfamiliar with the matters that can arise in military divorces. Military members or spouses considering divorce should seek a lawyer with substantial experience with military divorce to help them navigate through the process.

Article provided by Beth M. Terry, P.A.
Visit us at http://www.bethmterrypa.com