Military Divorces

Military Divorces

A significant number of marriages to military personnel end in divorce. About 7.2 percent of military women reported a divorce in fiscal year 2013, according to Department of Defense (DoD) data. The overall divorce rate among men and women was 3.4 percent. For every 100 troops who were married at the start of the fiscal year, about three or four notified the DoD about a divorce and officially changed their status for purposes of military benefits.

A divorce can be emotionally wrenching, especially when children are involved. Add to this the stress of a family divided by overseas deployments, it’s a situation that needs to be handled with care. Depending on the circumstances, a military divorce might not be any no more complicated than two civilians getting divorced (especially if there are no children and the military spouse has not served for a long time), there are laws that concern only service members and their spouses.

Military Divorce Law

Military divorces are governed by both state and federal laws.

  • Federal laws can impact in which jurisdiction the divorce takes place or how a pension (if there is one) might be apportioned,
  • State laws may spell out how much alimony and child support will be paid.

Active-duty service members can get some protection from divorce proceedings in most cases. Under the Servicemembers Civil Relief Act (SCRA), members of the military can seek postponements while on active duty or for 60 days following active duty (if the judge agrees).  The SCRA does not affect the judge’s decision on the merits of a divorce case, only if a delay will be granted.

Divorce filings and procedures

Before a court can grant a divorce, it must determine if it’s the right court (or jurisdiction) with authority to render a judgment on the case.  For divorces, jurisdiction is normally where the couple lives. For California, the couple must reside in, or a spouse must be stationed in, the state for there to be jurisdiction in a divorce case.

Federal law doesn’t impact the grounds for a divorce. Under California law, a divorce can be contested (there isn’t an agreement to divorce, or all the related issues such as alimony and child support haven’t been resolved) or uncontested (both spouses agree to divorce and agree to resolved related issues).

The spouse on active duty needs to be personally served with a summons and a copy of the divorce action for a California court to have jurisdiction over the case. If the divorce is uncontested, personal service is not required if the active duty spouse signs and files a waiver affidavit acknowledging the divorce action.

Who gets what from whom

State law will govern property distribution (though federal law can come into play if retirement benefits are involved), child custody and support issues.  Under California law, child support and spousal support/alimony awards cannot be more than 60% of a military member’s pay and allowances. California child support guidelines, worksheets and schedules are used to determine the amount of child support to be paid. There also special rules by the military concerning alimony and child support designed to ensure a service member’s family support obligations beyond a divorce or separation.

VA disability benefits will not be directly allocated to the non-service spouse. However, the judge may consider the disability payments when calculating child support, maintenance and property and debt division.

Military pensions, like civilian pensions, are subject to division between spouses in the event of divorce. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), state courts may treat military retirement pay as either sole or community property. California law states a pension is community property if it was earned during a marriage.

Who gets how much of the pension is up to California law, which divides up the pension either by “reservation of jurisdiction” or “cash out.”

  • Reservation of Jurisdiction: This is the more common way to handle pension plans. Due to a court order, when the military spouse retires the ex-spouse receives a portion of each pension payment. This portion is determined by dividing the number of years the couple lived as husband and wife by the number of years the military spouse served in the military. The result is the community property percentage of the pension plan.
  • Cash-out: This method involves obtaining “actuarial evaluation.” An actuary is hired to review the pension as well as the accumulations on the pension account, and determines the “present value” of the community share of the pension plan. With a cash-out, the military spouse receives the pension in its entirety and the other spouse receives other community property assets of equivalent value.

Payment of the ex-spouse’s share of the retirement pension is paid directly by the Defense Finance and Accounting Service (DFAS) if there was at least ten years of marriage with an overlapping ten years of military service. No matter how long the couple was married, a judge could order direct payments to the ex-spouse who had been married for less than ten years as an offset (the military spouse would make the payment, not DFAS).

In addition to pension benefits, ex-spouses of retired military personnel may also get full medical, commissary and exchange privileges if,

  • The couple was married for at least twenty years,
  • The service member performed at least twenty years of creditable service toward retirement pay, and
  • There was at least a twenty year overlap of the marriage and military service.

Reaching resolution

Given the many issues involved in a military divorce, especially when pension benefits are involved, spouses should retain attorneys to represent their interests. This isn’t just to prepare for a TV style, scorched earth courtroom scene of a divorce, but to help the parties resolve their differences.

If communications have broken down between the couple, it may be easier for attorneys to help their clients understand the facts, laws, issues and benefits of avoiding litigation. Even though a service member may be far from home, because of e-mails, Skype and telephone calls, there can still be communications with an attorney. If issues can’t be worked out, mediation is often successful at resolving difficult divorce issues.

Mike's Top FAQs About Divorce

How is a military pension divided in a divorce?

How is a military pension divided in a divorce?

Divorce proceedings are conducted by state courts and they can divide military pensions. The federal Uniformed Services Former Spouses’ Protection Act (USFSPA) allows (but does not mandate) state courts divide military retirement pensions upon divorce, legal separation or annulment.

How much of the pension gets divided?

The share of a pension to the non-military spouse could be as low as nothing or as high as half.

  • The non-military spouse might get 50 percent of the pension only if the marriage lasted the service member’s entire military career.
  • If the marriage lasted for part of the military career, the pension division will probably be prorated to reflect the time the spouse served in the military.

How an ex-spouse gets paid?

The USFSPA has a 10/10 Rule which states that if the couple was married for ten or more years while a spouse performed at least ten years of service, the government will make payments directly to the ex-spouse.

If this rule doesn’t apply, but the non-military spouse is awarded a portion of the pension payments, the service member gets paid the entire amount but will be obligated to the correct portion to the ex-spouse.

Another way to get paid is to have an actuary evaluate the military spouse’s pension to determine its current cash value. The military spouse would then give the other spouse an equivalent value in cash or non-marital property, leaving the military spouse with exclusive rights to the pension.

Posted in: Divorce, Family Law, Military Divorce, Property Division

How are disability payments to a military veteran handled in a divorce proceeding?

How are disability payments to a military veteran handled in a divorce proceeding?

The federal Uniformed Services Former Spouses Protection Act (the “USFSPA”) permits divorce courts to award ex-spouses of service members part of “disposable retired pay” (the retired pay available (after necessary deductions) based on salary and years of service). How that’s divided is decided by an agreement between the parties or by the judge.

  • Under the USFSPA, military disability pay is not “disposable retired pay” and is not subject to division in divorce.
  • If a service member waives retired pay in order to get disability pay, an ex-spouse can lose out on hundreds or thousands of dollars which they might have received.

There are two kinds of military disability pay and both are excluded from the USFSPA definition of disposable retired pay:

  1. Military Disability Retired Pay: This is for those are disabled such that they can’t perform their military duties.
  2. VA Disability Compensation: This type of compensation from the Department of Veteran’s Affairs (VA) covers injuries or disabilities that occurred while on active duty, or which were made worse by active service, including service related (not necessarily combat related) mental or physical injuries.

To get these VA benefits, a service member must waive a certain amount of retired pay. If this is done, the amount waived is subtracted from the amount available to the former spouse.

Spouses can have some protections or take steps to get the maximum payments:

  1. If there is a separation or property agreement, it should include a provision stating if the service member waives any retired pay for disability pay, the service member would make a monthly payment to the non-military spouse in an amount that makes up for the lost retired pay.
  2. If there is no such agreement and the divorce issues are being litigated, the judge can be asked to retain jurisdiction to order the military member to pay spousal support in the future, or to modify an existing alimony order based on any change in the parties’ circumstances. If retired pay is reduced because of disability pay, the non-military ex-spouse could request the judge to order the military member to pay spousal support (or increase it) to make up for the retired pay that’s been lost.

 

Posted in: Divorce, Family Law, Military Divorce

What is the Service members Civil Relief Act (SCRA) in a Military Divorce?

What is the Service members Civil Relief Act (SCRA) in a Military Divorce?

The SCRA was enacted in order to help protect service member’s rights if and when they are called to active duty. It protects regular service branch members, in conjunction with members of the Coast Guard serving on active duty in support of the armed forces, members of the National Guard when serving in an active duty status under federal orders, and Reserve members who are called to active duty.

The SCRA affords the right for any court proceedings to be put on hold, or provided a “stay” to postpone any administrative activity if a member’s active duty has an effect on their ability to proceed in the case.  This specifically applies to child custody issues as well and a stay of court and administrative proceedings would be afforded in order to protect the non-present spouse’s parental rights. The SCRA would be incredibly helpful if a spouse were to attempt to change the status of child custody while the service member is deployed.

A ninety-day stay is automatically granted when a service member requests this protection in writing. However, any further delay is decided at the discretion of the judge, hearing officer or magistrate that is assigned to the matter. This protection is not afforded nor does it protect a member’s invocation right for any criminal court proceedings.

There are also many individual state laws related to military child custody. Through the USA4 Military Families initiative, the DoD is partnering with states in order to further support military families. Specifically USA4 Military Families is striving to educate policymakers and ensure deployment separation does not determine child custody decisions.

Posted in: Divorce, Family Law, Military Divorce

What is a Family Care Plan for Child Custody in a Military Divorce?

What is a Family Care Plan for Child Custody in a Military Divorce?

As with normal civilians, military couples are presented with child custody issues if they are seeking dissolution of marriage. Members of the military are aware that active duty often requires time away from home due to deployments, training or frequent relocations. These factors may present custody issues, however there are ways to prevent or relieve some of the stresses that can evolve in a military divorce regarding child custody matters.

A Family Care Plan is highly recommended and sometimes required in order to clarify necessary details about the care of your child if a service member is called to active duty or deployed at no notice. Although most couples aren’t required to establish a family care plan, if you are or become a single parent due to death of spouse, separation/divorce, a service member can remain active but must meet the family care requirements of DOD – essentially requiring such members to have a “family care plan.”

A Family Care Plan is a set of documents describing who will care of your child during specific instances or if a military member is away on deployment or training. When it comes to a Family Care Plan there are some slight differences depending on the service, however most have three basic requirements: short-term care providers, long-term care providers, and care provision details. These support details include naming who will care for the child, financial details, medical specifications, and logistical considerations pertaining to food, housing, transportation, etc. These named care providers must be a non-military person, who agrees, in writing to accept the care of the member’s child or children. This person will also sign the Family Care Plan, indicating they consent and understand the responsibilities they are being entrusted with.

Posted in: Divorce, Family Law, Military Divorce

Can parents create their own agreement for child support?

Can parents create their own agreement for child support?

Yes, parents can stipulate their own agreement regarding child support, but it must be approved by the court. In order for the court to consider reviewing the agreement, it must meet the following guidelines:

  1. There must already be an open court case between the parents.
  2. The agreement must contain the following information:
    1. Each parent is fully aware of his/her child support rights.
    2. Each parent is aware of what the guideline child support amount would be.
    3. Neither parent is feeling pressured or forced to agree on the stated amount.
    4. Neither parent is receiving public assistance or has applied for public assistance.
    5. Both parents think that the agreed upon amount is in the best interest of the child.

After you have reached an agreement with the other parent and have created a stipulation consistent with these guidelines, you will both need to sign the document. If you do not have attorneys, your signatures will need to be notarized. You can then submit the stipulation for the court’s review. If you have a court date scheduled, you can bring the stipulation with you to the hearing for the judge’s review and signature, or you can go to the courthouse and ask to speak with a family law clerk to get it approved and signed.

After you have received the judge’s signature, you’ll need to file the original with the court clerk, and serve a file-stamped copy of the order on the other parent (or their attorney, if they have one.)

Posted in: Child Support, Family Law