Divorce is often a complicated, confusing, and scary process. That uncertainty can be magnified when one spouse is serving in the military.
Military families going through divorce face a unique set of challenges. There are specific rules and laws regarding jurisdiction, child custody, calculating child and spousal support, division of retirement benefits, and more that you need to be aware of.
Below is a brief overview of some of the key issues confronting military families in divorce.
Determining Jurisdiction When Filing For Divorce While In The Military
Determining jurisdiction is straightforward for most divorcing couples. You simply file where you live. That’s not so easy for military families where it is common for couples to bounce around from state to state very frequently.
To make court orders relating to a military retirement plan enforceable, certain jurisdictional requirements must be met. To do so, you must file for divorce in a state where the military spouse is domiciled, where the military spouse is a resident, or that you and your spouse agree to.
Domicile is defined as the permanent home. You can maintain a domicile even if not living in that state if you intend to return and permanently live there. To prove that intent you can provide the address you use on your tax return where you own a home, where your immediate family lives, where your car is registered, where you register to vote, or the residence you declare in documents such as wills or insurance policies.
Some states allow service members to file for divorce if they are stationed there, even if there is no intent to make that state a permanent home.
If stationed overseas or married to someone who is, you can still file in the U.S. In that case, the proper place to file is that state where you are domiciled or where you meet the residency requirements.
Click here to read more about determining jurisdiction in military divorce.
Calculating Child Support In Military Divorce
A parent’s income is the basis for calculating child support. Since military paychecks are different from other paychecks, this can complicate child support calculations.
States use a broad brush in calculating income and typically start with a parent’s gross income. That means gross income from all resources, including entitlements that are granted to you by virtue of your service to your country.
Courts look at BAH, separate ration, hazard pay, combat pay, bonuses on deployment, and GI benefits when calculating support.
If you are not currently paying support, there may be regulations that mandate support of your family based upon your gross pay, depending on what branch of the military you are serving in.
Click here to read more about calculating child support in military divorce.
Determining Child Custody Following Military Divorce
The work routine for military service members is rarely 9-to-5. Your schedule may change every few months.
With that being the case, it is important to specify in your agreement so that you are allowed to see your child for a specific amount of time each week or month and that time should be contingent on your availability.
In some situations, a Family Care Plan is required. Those instances include:
- When a service member is a single parent with custody of a child under 19, or shares custody with another parent to whom the service member is not currently married.
- Both parents are service members and have custody of children under 19.
- A service member is the sole caretaker for a child under 19 or an adult family member who’s unable to provide his or her own care, including a disabled spouse or other family member.
- A service member in any of these situations is required to advise the military immediately. The service member has 60 days (active duty members) or 90 days (reserve members) to give a commanding officer a formal Family Care Plan.
A Family Care Plan should specify provisions for leave and vacations, provisions for surrogate visitation during deployment, methods of communication during deployment, provisions for your return, and provisions for an out-of-area transfer.
Click here to read more about child custody issues in military divorces.
Servicemembers Civil Relief Act (SCRA)
Passed in 2003, the Servicemembers Civil Relief Act is designed to help active members of the Unites States’ Armed Forces seek protection from civil actions.
Service members are at a clear disadvantage when faced with defending a civil lawsuit or fulfilling financial obligations while also serving their country. SCRA provides several different types of protections, ranging from lowered interest rates to eviction restrictions.
SCRA provides a valuable benefit for service members faced with child custody and child support issues. The law enables service members to stay, or suspend, civil actions brought against them during their service.
Click here read about common questions about SCRA.
Dividing Retirement Accounts And Benefits In Military Divorce
Following 20 years of credible service, military members are eligible fore retired pay benefits. When a military member decides to divorce, how those benefits are distributed is often one of their largest concerns. The process for dividing those benefits is outlined in the Uniformed Services Former Spouses’ Protection Act (USFSPA).
Overall, the law indicates that courts will consider military retired pay as community property. The USFSPA makes it unlikely that retired pay awarded to the former spouse can be amended.
Under the USFSPA, the military can’t retain the retired pay for the ex-spouse, but it does allow states to divide it. Up to 50% of military retired pay can be paid to the ex-spouse. But if any alimony or child support is owed, a maximum of 65% can be taken.
The marriage only needs to have lasted at least 10 years during which the member performed at least 10 years of credible service for benefits to be subject to distribution.
Click here to read why the USFSPA is often unfair to retired veterans.
2 comments on “The Basics Of Military Divorce”
Military divorce is definitely more complicated than civilian. As you point out, child custody is a completely different animal in this context. This is one case where truly working to communicate with your ex and work together is incredibly valuable. It’s easy to be bitter and sore, but in the difficult circumstances brought about by the military, a little civility can go a long way.