Military Divorce Facts and Tips
Different Rules for a Military Divorce
A military divorce has its own rules regarding division of military pensions, residency requirements for filing for divorce, certain legal protections for the military member and emergency court orders pertaining to child support. For this reason, its a good idea to at least consult with a lawyer who is experienced in military divorce.
The Uniform Services Former Spouse Protection Act (USFSPA) recognizes the right of state courts to distribute military retired pay to a spouse or exspouse and provides a method of enforcing these orders through the Department of Defense. USFSPA does not make division of military pay mandatory during divorce. An exspouse must have been awarded a portion of the members military retired pay as property.
Servicemembers Civil Relief Act
Military members enjoy legal protection from divorce proceedings under the Service Members Civil Relief Act. SCRA protects service personnel from lawsuits including divorce proceedings so they can devote their entire energy to the defense needs of the nation. A court can delay legal proceedings for the time that the service member is on active duty and for up to 60 days following active duty.
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.
State Law Prevails
State law in the jurisdiction where the action is filed controls a military divorce when the spouses must decide on grounds, property distribution and child custody, visitation and support.
Division of most of the marital estate assets and liabilities - is controlled by state law. The USFSPA, however, allows state courts to treat disposable retired pay either as property solely of the military member or as property of the member and his spouse. The military pension is very often the largest asset the service couple divides. The USFSPA authorizes direct payment of a portion of a military retirees pay to the former spouse and extends some base privileges to certain former spouses. The USFSPA does not contain a formula for calculating the appropriate division of retired pay. Although up to 50% of a military members retired pay may be awarded, state law determines the exact division of the retired pay.
A Word of Caution
It is important to understand that the USFSPA does not mean that the nonmilitary spouse automatically gets a share of the military spouses retirement pay. Splitting of military retirement pay is not mandated by the USFSPA. The divorce decree must state the percent of retirement pay awarded. Defense Finance and Accounting (DFAS) has very strict rules about the wording of a divorce decree.
Under the USFSPA a former military spouse is eligible for full medical, commissary and exchange privileges when 1) the marriage lasts at least 20 years, 2) the military member performs at least 20 years of service creditable for retired pay, and 3) there is at least a 20 year overlap of the marriage and the military services. If the spouse remarries, eligibility for benefits is terminated. The benefits are revived if the subsequent marriage ends in divorce.
All military members must support their children, as well as their spouses, so their wages may be garnished in order to ensure the proper payment. Child support may not exceed 60% of a military members pay and allowances. Unlike a civilian divorce, the nonmilitary member can go to their ex-spouses commanding officer, which is added protection against a deadbeat parent.
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PROPERTY DIVISION -- The Uniform Services Former Spouse Protection Act (USFSPA) allows state courts to treat disposable retired pay either as property solely of the military member or as property of the member and his spouse. The USFSPA authorizes direct payment of a portion of a military retirees pay to the former spouse and extends some base privileges to certain former spouses. Although up to 50% of a military member’s retired pay may be awarded, state law determines the exact division of the retired pay.
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