Weathering a divorce from the military
Hello Military Community,
Divorce – the dreaded “D” word – is something military families are seeing more and more of each year. In this week’s column, I will focus on the legalities surrounding such divorces and the division of assets as well as child and spouse support.
Before considering separation and/or divorce interview attorneys and learn about military divorce. Your attorney should be experienced in military divorce and licensed to practice in the state where the divorce is filed. Don’t sign anything without your attorney’s approval. Those stationed overseas and married to a non-U.S. citizen need to be aware of any laws that may be involved. Here is list of spouses’ rights that every military family needs to be aware of:
Home of Record or Legal Residence: The home of record is the address used when the service member entered the military. The state of legal residence is where the service member intends to live after discharge. Military divorces MUST be filed in the home of record of the service member.
Uniformed Services Former Spouse Protection Act (USFSPA): All states allow military retirement pay to be recognized and divided as marital property. Different states use different formulas. The spouse receives a percentage of “disposable” retired pay; this doesn’t include disability pay or survivor benefit premiums paid by the service member for the spouse. The USFSPA also addresses the spouse’s continuing eligibility for commissary, exchange, and health-care benefits. If a couple divorces before the service member retires, the court may still award the spouse a share of future retired pay.
Soldiers’ and Sailors’ Civil Relief Act (SSCRA): Congress protects service members from lawsuits, including divorces proceedings, especially when the service member is overseas. Courts can delay a divorce proceeding for as long as the service member is on active duty and for 60 days thereafter. The court may appoint an “ad litem” attorney to represent the service member in a temporary judgment.
Separation Agreement: Even if you and your spouse have a separation agreement, you are still legally married. This is not a good time for either party to move in with a new significant other because this could be viewed as adultery by the court. (IF the signed agreement states that you both agree to a no-fault divorce, this may remove the risk of being charged with adultery.) A spouse can continue to live in base housing and retain military privileges during the separation.
Prenuptial or Postnuptial Agreement: If you both signed a prenuptial or postnuptial agreement relating to property settlement in the event of divorce, this agreement takes precedence over state and federal laws governing divorce in the military.
Rules 20/20/20 and 20/20/15: In addition to half of the service members disposable retirement pay, former spouses who qualify under the 20/20/20 rule may be permitted to retain their military ID and commissary, exchange, and healthcare benefits. 20/20/20 means that a spouse has been married to a service member for at least 20 years, the service member served at least 20 years, and there was at least a 20-year overlap of the marriage and military career. For the 20/20/15 rule, a former spouse must meet the same criteria except there must be at least a 20-year overlap of the marriage and military career, and will be entitled for military medical care ONLY and one year of transitional medical benefits. The benefits do NOT include other military benefits, such as commissary, PX/BX, etc.
Because the state court decides how marital assets will be divided, a spouse married for only one or two years could be awarded a portion of the service members’ pension. It is in the spouse’s best interest to delay the final judgments until she or he meets the 20/20/20 or 20/20/15 rule. If the 20/20/20 spouse remarries, she or he will forfeit ALL military benefits, but if this new marriage ends due to divorce or death, the former spouse may have ALL military benefits reinstated.
Divorce: Sailors, Marines and soldiers wanting a fast, easy divorce will quickly find that the government expects them to remember their core values and act responsibly toward their spouses and children at ALL times. The military has severe penalties for ANY service member who deserts his or her family, up to and including court martial.
Quickie Divorce: Don’t try to circumvent the system by going to Mexico or any other location outside of the United States for a quick divorce. The jurisdiction will NOT serve as a proper basis for payment of public funds. If the service member were to remarry and try to make the new spouse a military dependent he or she will have to show proof of divorce. The former spouse would still be legally married to the service member in the eyes of the military.
Adoption: If your spouse has a child from a previous marriage and you adopt the child, you are responsible for child support even after the divorce. (You divorce your spouse, not your children.) The law grants adopted children the same rights as biological children. Child support usually ends at age 18, but have your attorney clarify this in the divorce agreement.
Child Support and Alimony: Whether it is a spouse or a spouse with children, or if there are no spousal benefits but child support, the alimony and child support entitlement can be determined by a simple formula. If you and your spouse have a separation agreement or court order, this formula will NOT apply.
Financial Need: If you are not receiving support and have been unable to contact your military member, call the Legal Assistance (JAG) or your chaplain. The chaplain will notify the service member’s command officer about your situation. If your situation is critical, the Family Assistance Program can assist with grants for necessities. However, the service member will be in serious trouble for neglecting to provide for the family. Under DOD Pay Manual Article, a service member MUST pay dependents, at minimum, his or her monthly basic allowance for subsistence (BAS).
Divorce Care: This organization will help you find help and healing for the hurt of separation and divorce. Divorce Care is a friendly, caring group of people who will walk alongside you through one of life’s most difficult experiences. Divorce Care has seminars and support groups that are led by people who understand what you are going through and wants to help. You’ll gain access to valuable Divorce Care resources to help you deal with the pain of the past and look forward to rebuilding your life. Divorce Care has a huge staff of recovery support groups meeting throughout the US, Canada and in other countries around the world. Visit www.divorcecare.com.
Abandoned Military Spouses: I first heard of this program through a Stars & Stripes article a couple years ago. The Army started an Abandoned Spouses Hotline in hopes of helping women left stranded, intentionally and unintentionally, by their military husbands. This has become a rising problem in overseas countries like Korea. This is illegal and should NOT be tolerated. You can call 505-730-3635 and leave a message in English, Korean, Spanish, Russian or Tagalog. Visit www.stripes.com/news/abandoned-spouses-hotline-program-may-become-a-mode....
If anyone is aware of another resource that is available for military families, especially for families overseas please contact me and tell me about it so that I may post it for others.
Blessings from my family to yours.
If you have any questions or concerns or would like to share a story or situation, contact me at Kim@MilitaryResourceBooks.com and visit my website for updated information and other Resources not listed in my book.