Additional factors present in a military divorce
Even if you have no property to divide or child custody and support details to work out, few – if any – divorces could ever be called uncomplicated. If you or your spouse are in the armed forces, that military service also means you’ll have special factors to consider along with all the usual concerns if you decide to end your marriage.
The Uniformed Services Former Spouses’ Protection Act
The Uniformed Services Former Spouses’ Protection Act is a federal statute that provides guidance on issues such as continued entitlement military benefits (medical, commissary, and exchange) divisions of military pensions earned during the marriage, Survivor’s Benefit Plans, and child support. Under the USFSPA, the court has discretion to treat the service member’s retirement pay as property, rather than income and classify it as belonging only to the service member, or belonging to the service member and his or her ex-spouse.
If the court chooses to treat the retirement pay as the sole property of the service member, the former spouse will receive no retirement benefits. If a spouse is given a portion of the benefits, the amount or percentage is determined by state law. The maximum portion of retirement benefits a former spouse may receive is 50 percent. This amount is in addition to any alimony or child support payments. Please note that a spouse’s entitlement to a portion of a service member’s retirement pay must be properly raised when the divorce case is pending. If such claim is not made when the case is pending, it may be too late to ask for a portion of those retirement pay benefits after the case is concluded. A spouse may receive his or her portion of the service member’s retirement pay directly from DFAS if the parties were married to each other for more than 10 years while the military member was on active duty.
A former spouse is entitled to full military benefits (such as military medical coverage, commissary, and exchange privileges) if all of the following conditions are met:
- The marriage lasted more than 20 years
- The service member engaged in more than 20 years of service and is eligible for retirement pay
- The marriage lasted 20 years that overlap with 20 years of military service. This is the 20/20/20 rule.
Military medical benefits may be available for the spouse also for one year following the entry of a divorce decree if the parties were married to each other for at least 20 years 15 of which years were while the military member was on active duty. This is the 20/15/15 rule.
Military “COBRA” (continued TriCare medical benefits) may also be available (at a cost) for other spouses who do not meet the 20/20/20 or 20/15/15 rules described above under the Continued Health Care Benefit Plan. Your experienced family law attorney should be able to explain the cost of CHCBP and requirements for entitlement to this coverage.
Military divorces come with special child support protections as well. If a service member refuses to pay child support, the former spouse may seek the assistance of the service member’s commanding officer to obtain the payments. Up to 60 percent of a service members pay can also be garnished for payment of both child support and alimony.
Where to file
In a military divorce, there can be some confusion over where to file. A divorce petition can be filed in the state where:
- The filing spouse resides
- The service member is stationed
- The service member is a legal resident
Many states have a jurisdictional requirement that at least one of the spouses must have been a legal resident of that state for a period of time (6 months in Florida) before the filing of a Petition for Dissolution of Marriage.
All issues related to the divorce – from property division to child support and more – are governed by state law. It might pay to investigate how states handle such potentially contentious issues before deciding where to file.
Get legal representation from someone who understands military divorce law
If you are considering a divorce, and you or your spouse serves in the military, the smartest choice you can make for legal counsel is someone who is familiar with the unique circumstances of military divorce. He or she can help protect your benefits and help reach a fair and equitable resolution. When deciding to hire a family law attorney, you might want to consider the following:
- How long has the attorney be practicing?
- Is the attorney a Board Certified Family law attorney?
- Is the attorney a Martindale Hubbell© AV rated attorney?
- Does the attorney have the reputation for being a well-prepared and effective advocate?