Weathering a divorce from the military
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. Next week, I’ll talk about 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 overlap of the marriage and military career.
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.
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.