Special considerations for military divorces

February 09, 2013 (Press-News.org) Special considerations for military divorces

Article provided by Law Office of Kevin L. Beard, P.A.
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When they divorce, military spouses face the same divorce process as civilian couples. The petition for divorce is filed in a state court and a family court judge divides assets and property and determines child support and alimony payments. However, military divorces can present unique issues involving jurisdiction over the divorce, the time frame in which the divorce is completed and the way assets and property can be divided between spouses.

Filing for divorce and the Service Members Civil Relief Act

Special considerations for divorcing military spouses start before the petition to divorce is filed. Under the Service Members Civil Relief Act, divorce proceedings between a spouse and an active-duty service member can be delayed until 60 days after the service member's active duty is complete. The rule was designed to help military personnel focus on serving their country without the added stress of family or personal matters.

Active duty and where a service member is stationed can also play a role in where a spouse can file for divorce. Some states allow active-duty personnel to file for divorce in the state where they are stationed, even if the service member's permanent residence is in another state. Divorce petitions can also be filed in a service member's home state or the state in which the filing spouse resides, if it is different than the service member's.

Child support orders and alimony

The Uniformed Services Former Spouses' Protection Act, or USFSPA, requires that state child support and alimony rules guide the child support decisions made in divorces between a service member and his or her spouse.

For this reason, it is important that spouses seriously consider the child support and alimony rules in the state in which they are thinking about filing. The choice to file in one's home state, the state where one is stationed or the home state of a spouse may have a significant impact on child support and alimony payments.

Determining the division of military retirement pay

Under USFSPA, states have the right to decide how to divide military retirement pay and pensions in a divorce, though the military has guidelines covering how some military retirement pay could be distributed. Often, spouses of military personnel believe they are entitled to a certain percentage of benefits because of the military's guidelines; however, this is not the case because the each state is able to make its own laws about property and its distribution during a divorce.

Because states have the freedom to decide how military retirement pay is divided, the military requires courts to explicitly state how they determined payments. The most common way states distribute military retirement pay is through a reserve jurisdiction. This means courts will not calculate the share of military retirement pay to award to an ex-spouse until the time when the service member retires.

Other times, courts may determine the amount of pay awarded to an ex-spouse during divorce proceedings, but may not make funds payable until after the service member retires.

Lastly, a court may award a buy-out of military retirement pay, in which case a spouse would receive an amount equal to the net present value of a service member's retirement savings.

Direct payments and military retirement pay

Direct payments are one more special consideration in military divorces. The Defense Finance and Accounting Service makes direct payments to retired service members. Direct payments are also available to ex-spouses if they meet certain conditions.

First, an ex-spouse must have been married to a service member for at least ten years, during which time the service member must have been in the military at least ten years. For example, if a couple was married 15 years and one spouse was in the military for ten of those years, the ex-spouse would be eligible for direct payments. If the couple was married for 15 years but one spouse was in the military for only eight of those years, the ex-spouse would not qualify for direct payments.

While an ex-spouse may be ineligible for direct payments, he or she may still receive up to half of a retired ex-spouse's pay. Former spouses may receive a portion of an ex-spouse's pay as long as the criteria the court used to arrive at the payment amount explicitly states how it determined the payment in the divorce decree.

Serving in the military can add a level of complexity to a service member's divorce proceedings. To learn more about the effects of military service on divorce, contact an experienced family law attorney.