Divorce is never easy, but when one or both spouses are serving in the military, the process can become significantly more complicated. Military divorce involves a unique set of challenges that are not typically encountered in civilian divorces, from navigating the division of military benefits to managing custody arrangements when one parent is deployed. Understanding these challenges and how to overcome them is crucial for military families going through a divorce.
Understanding Military Divorce
A military divorce refers to a divorce where one or both spouses are active-duty service members, veterans, or reservists. While the fundamental legal process of divorce remains the same, military divorces are governed by additional federal laws and regulations that can impact various aspects of the divorce, including the division of military pensions, child custody, and spousal support.
Jurisdiction in Military Divorce
One of the first challenges in a military divorce is determining which court has jurisdiction to handle the case. Unlike civilian divorces, where jurisdiction is typically based on residency, military divorces may involve multiple states or even countries. Service members may be stationed far from their home state or overseas, making it challenging to establish jurisdiction.
Typically, a military divorce can be filed in the state where the service member is stationed, the state where the service member claims legal residency, or the state where the spouse resides. Choosing the right jurisdiction is crucial, as state laws vary, and the outcome of the divorce may be influenced by where the case is filed.
Division of Military Benefits
One of the most complex aspects of military divorce is the division of military benefits, particularly military pensions. Military pensions are often one of the most valuable assets in a military marriage, and federal laws govern how these pensions are divided in a divorce.
Uniformed Services Former Spouses’ Protection Act (USFSPA)
The USFSPA is a federal law that allows state courts to treat military retirement pay as marital property and divide it between spouses during a divorce. However, the division of military pensions is not automatic; it must be requested as part of the divorce settlement.
The 10/10 Rule
A common misconception about military pensions is the 10/10 rule. This rule states that a former spouse is eligible to receive direct payments from the Defense Finance and Accounting Service (DFAS) if the couple was married for at least 10 years, during which the service member performed at least 10 years of creditable military service. However, even if the marriage does not meet the 10/10 rule, the former spouse may still be entitled to a portion of the military pension; they just won’t receive it directly from DFAS.
Survivor Benefit Plan (SBP)
The SBP is another important consideration in a military divorce. The SBP provides continued income to the former spouse if the service member passes away. It’s essential to address the SBP during the divorce proceedings to ensure that the former spouse is protected.
Child Custody and Visitation
Child custody is a significant concern in any divorce, but military families face additional challenges due to the nature of military service. Frequent relocations, deployments, and unpredictable schedules can complicate custody arrangements and make it difficult to maintain a consistent parenting plan.
Deployment and Custody
One of the biggest challenges in military child custody cases is deployment. Courts must consider how deployment will affect the ability of the service member to fulfill their parental responsibilities. In some cases, the court may grant temporary custody to the non-military parent during deployment, with the understanding that custody will revert to the service member upon their return.
Parenting Plans
Creating a detailed and flexible parenting plan is crucial in a military divorce. The plan should address potential deployments, relocations, and other military-related issues that could impact custody arrangements. Some states have specific laws that allow for expedited hearings or temporary modifications to custody orders in the event of deployment.
The Servicemembers Civil Relief Act (SCRA)
The SCRA provides certain protections to active-duty service members, including the ability to delay court proceedings if their military service prevents them from participating in the case. This can be both a benefit and a challenge in custody disputes, as it may delay the resolution of the case.
Spousal Support and Alimony
Spousal support, also known as alimony, is another area where military divorce differs from civilian divorce. Military service can affect spousal support in several ways, including the calculation of income and the ability to pay.
Basic Allowance for Housing (BAH)
BAH is a non-taxable allowance provided to service members to cover housing costs. It is considered part of the service member’s income when calculating spousal support and child support. However, BAH is only provided when the service member is not living in government-provided housing, so it’s important to account for changes in BAH during and after the divorce.
Temporary Spousal Support
During the divorce process, the court may order temporary spousal support to ensure that the lower-earning spouse can maintain their standard of living. In military divorces, this temporary support may also include additional allowances, such as the Basic Allowance for Subsistence (BAS).
Garnishment of Military Pay
In some cases, spousal support may be garnished directly from the service member’s military pay. The USFSPA allows for the enforcement of alimony and child support orders through the garnishment of military pay, ensuring that the former spouse receives the support they are entitled to.
Overcoming the Challenges of Military Divorce
While military divorce presents unique challenges, there are strategies that can help service members and their spouses navigate the process more smoothly.
- Seek Legal Representation with Military Divorce Experience: Military divorce involves complex legal issues that require specialized knowledge. It’s essential to work with an attorney who has experience handling military divorces and understands the unique aspects of military life. An experienced attorney can help you navigate the legal process, protect your rights, and ensure that you receive a fair settlement.
- Understand Your Benefits and Entitlements: Familiarize yourself with the benefits and entitlements available to you as a service member or former spouse. Understanding how military pensions, health benefits, and other allowances are affected by divorce can help you make informed decisions during the negotiation process.
- Communicate and Cooperate: Effective communication and cooperation between both parties can help resolve many of the challenges associated with military divorce. If possible, try to work together to create a parenting plan that accounts for the unique demands of military service and minimizes disruption for your children.
- Plan for the Future: Military life is unpredictable, and it’s essential to plan for future contingencies. Consider how deployments, relocations, and changes in military status may affect your divorce agreement, and build flexibility into your plans to accommodate these potential changes.
- Utilize Mediation and Alternative Dispute Resolution: Mediation and alternative dispute resolution (ADR) can be valuable tools in military divorce cases. These methods allow both parties to work together to reach a mutually agreeable settlement without the need for lengthy court battles. Mediation can be particularly effective in addressing complex issues such as the division of military benefits and child custody arrangements.
Reaching A Fair and Equitable Divorce Settlement
Military divorce is a complex and challenging process that requires careful consideration of unique legal and practical issues. From the division of military benefits to the complexities of child custody during deployment, service members and their spouses must navigate a range of obstacles to achieve a fair and equitable settlement. By seeking experienced legal representation, understanding your rights and benefits, and prioritizing communication and cooperation, you can overcome the challenges of military divorce and move forward with confidence.
At The Micklin Law Group, we are committed to helping military families navigate the complexities of divorce with compassion and expertise. If you are facing a military divorce, contact us today to schedule a consultation. We are here to provide the support and guidance you need to protect your rights and secure your future.
