What Attorneys Need to Know About Military Divorce

Any attorney knows that the lack of communication is one of the biggest complaints of clients. Add to it the lack of education (on the attorney’s or client’s part, or both) on the federal law that awards military retired pay, and you have the ingredients for not only angry clients, but also for other problems, not the least of which could be a malpractice suit.

Whether you are dealing with the service member or the spouse, you must realize you have a person (particularly the service member) who has strong emotional ties to the years he or she has served in the military. The spouse may feel the same ties, and even more, when he or she has given up (whether or not it is voluntary) their own career at the expense of the service member’s career. You must be able to appreciate what the service member has contributed in service to our country, as well as the feelings of the spouse who believes that he or she has gone through a lot to earn it, too. Add to that the dissatisfaction on the client’s part with the laws of the state court to treat and divide their assets, and you have the challenging job of separating the emotional from the business aspects of a partnership that has to be dissolved.

If you are already knowledgeable in military divorce, you may wish to give your clients a copy of the book, Divorce and the Military II, to learn the basics and to work with you. By not having to explain the basics, you can save yourself time and the client money, and find it more expedient to explain what you can and cannot do for them, depending on your state’s treatment of military retired pay. You will find that the book is an excellent source for discovery purposes.

if your skill lies in expert negotiations or strategies for financial reinvestment of assets, and you are weak on the facets of military divorce, including benefits both pre- and post-divorce, then you may want to hire someone to assist you.

Keep in mind, too, that some military members (reservists and retired gray area reservists) have fewer rights and benefits than the ex-spouse of a 20/20/20 marriage. Working with such clients to draft a proper decree will certainly be challenging.

Whether you are already an expert on military divorce or whether you are just learning this specialized area, please keep in mind that military retired pay, which is also called retainer pay, is never referred to as a pension. Do not call it that in any of your documents, discussions, or written communications. Service members do not contribute money to their retirement system. Military retired pay is not a vested right, and the federal law does not permit a service member to begin receiving retired pay until the requisite number of creditable years has been attained. While the divorce may take place before the service member actually begins receiving retired pay, the payment of same to the former spouse cannot begin until the service member has actually retired.



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Suggested Reading
Divorce & the Military II Divorce & the Military II
DIVORCE AND THE MILITARY II is the newly published comprehensive guide for military members (active duty, reserve/guard, and retired), spouses, and their attorneys, on the Uniformed Services Former SpousesŐ Protection Act (USFSPA). The USFSPA is the federal law that permits the award of military retired pay in a divorce.

Author: Marsha L. Thole and Frank W. Ault


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RESIDENCY AND FILING -- Many states permit a military member or spouse to file for divorce in the state where the military member is stationed even if neither is a legal resident of the state. Military members and spouses have three choices when it comes to which state to file for divorce: 1) the state where the filing spouse resides, 2) the state where the military member is stationed, or 3) the state where the military member claims legal residency.
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