Navigating the turbulent waters of divorce can be challenging, regardless of your circumstances. However, when one or both parties are in the military, it adds an extra layer of complexity to the proceedings. In this blog post, we will explore the key differences between military and civilian divorces.
Legal Considerations Unique to Military Divorces
Jurisdiction & Residency Requirements
When it comes to military divorces, the question of where to file can be as complex as the divorce itself. Unlike civilian divorces, where jurisdiction is typically straightforward, military service members may have multiple places they could potentially file. The home of record, the state of legal residence, and the duty station each offer different advantages and legal implications.
For instance, the home of record is often the state where the service member entered the military, but it might not offer the most favorable divorce laws for their situation. On the other hand, the state of legal residence requires an intent to reside indefinitely, which can be difficult to prove for service members who move frequently.
The duty station, or where they are currently stationed, may seem like the obvious choice, but it may not have jurisdiction if the service member is only there for a temporary assignment. Understanding these nuances is crucial for ensuring that the divorce proceedings are valid and enforceable.
Division of Military Pensions
The division of military pensions in a divorce is governed by the Uniformed Services Former Spouses' Protection Act (USFSPA), which recognizes the right to treat military retirement pay as property rather than income. This distinction is critical in ensuring that non-military spouses receive their fair share of the retirement benefits earned during the marriage. It's essential for both parties to understand how the USFSPA will affect their financial futures post-divorce.
Longer Divorce Timeline
The Servicemembers Civil Relief Act (SCRA) aims to protect servicemembers who are abroad. In line with this protection, the law aims to keep those abroad focused on their missions at hand and avoid distractions at home, including legal matters like divorce. The SCRA enables servicemembers to file extensions and disallows courts from making rulings if a spouse fails to meet a filing deadline while on active duty. However, this can make your divorce a lengthier process, especially if you are the stateside spouse.
Child Custody & Support Challenges in Military Divorces
Impact of Deployment on Custody Arrangements
Deployment is a reality for many service members, and it can significantly impact child custody arrangements. The transient nature of military life means that custody decisions and parenting plans must be flexible enough to accommodate sudden relocations or deployments. Courts often have to consider the best interests of the child against the backdrop of a parent's service to the country.
This can lead to creative custody solutions, such as virtual visitation rights, which allow deployed parents to maintain contact with their children. The challenge is to craft a custody arrangement that supports the child's need for stability and the service member's duty to their country.
Calculating Child Support with Variable Military Income
Calculating child support in the context of military divorce adds another layer of complexity due to the variable components of military pay. Base pay is just the starting point; allowances for housing (BAH), food (BAS), and even combat pay must be considered when determining a service member's income.
These allowances can fluctuate based on deployment status, location, and other factors, making it challenging to establish a consistent child support amount. It's crucial for the courts to understand the full scope of a military member's compensation to ensure that child support orders are fair and in the best interest of the children involved.
Benefits & Entitlements in Military Divorces
Tricare & Commissary Privileges
For non-military spouses, the end of a marriage doesn't necessarily mean the end of all military benefits. Under certain conditions, such as the 20/20/20 rule (20 years of marriage, 20 years of service, and a 20-year overlap of both), a former spouse may continue to enjoy benefits like Tricare health care and commissary privileges.
There's also the 20/20/15 rule, which offers some benefits for a transitional period. These rules are designed to protect spouses who have supported their partner's military career, often at the expense of their own professional development. Understanding these entitlements is crucial for non-military spouses to ensure they receive the benefits they are entitled to post-divorce.
Survivor Benefit Plan (SBP) Considerations
The Survivor Benefit Plan (SBP) is another critical aspect of military divorces that requires careful consideration. The SBP allows retired service members to provide continued financial support to a designated beneficiary in the event of their death.
During divorce proceedings, the SBP can be negotiated as part of the settlement to ensure the non-military spouse is provided for financially. However, the decision to elect SBP coverage and the negotiations surrounding it can be complex, and both parties must fully understand the implications.
The Role of Military Legal Assistance
Access to Free Legal Services
Military members and sometimes their spouses have access to free legal assistance through the military's legal assistance offices. These services can be invaluable, offering guidance on issues ranging from drafting a will to understanding the nuances of a military divorce.
However, while these resources provide a solid foundation of legal knowledge, they are not a substitute for comprehensive representation. Service members and their spouses often require specialized legal advice that goes beyond what military legal assistance can offer, particularly in complex divorce cases that involve the division of military pensions, custody issues, and other contentious matters.
Limitations of Military Legal Assistance in Divorce Cases
While military legal assistance provides a valuable service, it's important to recognize its limitations. Military attorneys cannot represent service members or their spouses in a civilian court, which is where divorce proceedings typically take place.
Additionally, they may not have the specialized knowledge required to navigate the intricacies of military divorce law, such as the division of military retirement benefits or the implications of the Service Members Civil Relief Act (SCRA). For these reasons, seeking civilian legal counsel with experience in military divorce is often the best course of action for those facing the end of a marriage within the military community.
Strategies for Navigating Military Divorce
Importance of Civilian Legal Representation
The complexities of military divorce make it imperative for service members and their spouses to seek experienced civilian legal counsel. A lawyer who is well-versed in both family law and the unique aspects of military divorces can be a crucial ally.
They can provide strategic advice on issues like jurisdiction, the division of military pensions, and child custody arrangements that account for deployment. Civilian attorneys can also represent clients in court, advocating for their rights and interests in a way that military legal assistance cannot. The right legal representation can make a significant difference in the outcome of a military divorce, ensuring that all parties receive a fair and equitable settlement.
Preparing for a Military Divorce
Preparation is key when approaching a military divorce. It's essential to gather all relevant financial documents, understand the full scope of military benefits, and consider the long-term impacts of divorce settlements. Additionally, considering the emotional and logistical challenges of custody arrangements in light of military service is crucial. By taking these steps, service members and their spouses can position themselves for a more favorable resolution to their divorce proceedings, one that respects the service of the military member and the contributions of the other spouse.
Get Help with your PA Military Divorce
Cairns Law Offices offers comprehensive online divorce services for those involved in a military divorce. You can use our services to file an uncontested, no-fault divorce, and you can trust that our team will make your case a priority.
To discuss your case with a member of our team, call (888) 863-9115.
