From Where You File For Divorce To The Issue Of Benefits Weve Covered Four Things You Should Know About A Military Divorce
The terms on which a relationship ended play a big part dictating how the divorce proceedings go, but its not the only factor. There are also any shared assets, entitlement to income and benefit, and the potential matter of child custody. These things play a role in a military divorce, some of them uniquely so.
From where you file for divorce to the issue of benefits, weve covered four things you should know about a military divorce.
Is The Former Spouse Entitled To A Portion Of The Military Spouse’s Pension
Yes. The Uniformed Services Former Spouse Protection Act permits state courts to apply the family law principles of their particular state when deciding how to divide military pensions in divorce. the full text of the USFSPA. Under the USFSPA, state divorce courts can award a military pension to the service member or divide it between the spouses. If the pension is awarded entirely to the service member, courts may compensate the spouse for his or her share of the military pension from other marital assets.
Effect Of Separation On Nonmilitary Spouses Benefits
When military families separate, or couples divorce, the effects on their family include:
· Financial Benefits
· ID Changes
Housing. The right to military housing belongs to the military member. When the military member moves out of the military residence, then the family members must vacate the housing within 30 days of the date it is no longer occupied by a military member.
The military will not pay for the family members to move since the move is considered a move to accommodate a military members personal problems. Although this rule exists, the military member does not have the authority to evict the family members. The eviction order must come from the commander.
You may be entitled to a portion of your military members housing allowance, particularly if you were abandoned by your military spouse.
Identification Card . During the separation, the nonmilitary spouse retains his or her ID card. This means the person has the same full benefits during the separation as he or she had during the marriage. The ID must be surrendered and will no longer be valid when a divorce is finalized.
Medical Care. As long as you stay married, you are entitled to medical benefits through your service member. Unless you fit one of the exceptions discussed below, you will lose your medical benefits when the divorce is final.
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Resources For Reserve And National Guard Families
Air Force Reserve Command Family Readiness Families of deployed reservists will be assisted and supported by the Family Readiness office. The types of deployment assistance services the family can expect include joint inter-service family assistance services, crisis intervention assistance, volunteer opportunities, reunion activities, information and referral services to appropriate support agencies, and more.
American Association for Marriage and Family Therapy Therapist Locatorwww.therapistlocator.net This directory will assist you in locating a marriage and family therapist in your area. The listed therapists are clinical members of the American Association for Marriage and Family Therapy. Be sure to ask if the therapist has training regarding military families.
Army Family Readiness Group www.armyfrg.org The Army FRG website is a secure site only available to soldiers/ Department of the Army civilians and their family members. The Army FRG site enables soldiers/DA civilians to access important information about their unit 24/7 from anywhere in the world. Soldiers/DA civilians can invite their family members to subscribe to the units site to provide them with a valuable resource to gain information about the unit.
Military OneSource Military OneSource is provided by the Department of Defense at no cost to active duty, Guard and Reserve , and their families. It is a virtual extension of installation services.
If I File For Divorce From My Enlisted Spouse Can I Stay In Base Housing
Under the law, you continue to be a military dependent until such time as your divorce is final. So, technically, you are entitled to remain in base housing with your family. As a practical matter, though, you may find it very difficult to live in the same household as the spouse you are planning to divorce. One of you may need to move out while the divorce is pending.
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Enforcing Child Support And Spousal Support Obligations
If family support for a spouse or child is not paid, then the dependent spouse may complain directly to the service members Commander. Straightforward and inexpensive, this approach may be sufficient to get payments flowing again. Why? Because the service member who fails to support a family violates military regulations the Commander enforces regulation compliance. A service member may be reprimanded , have pay forfeited, or be criminally sanctioned for noncompliance with military regulations. The Commander may schedule support payments going forward, prospectively, from the date the complaint was received, but cannot enforce support arrearages. The military spouse may request the Commander relieve him or her from the obligation to provide interim spousal support. Relief is typically based on allegations:
- The service member was the victim of domestic violence by the other spouse.
- The other spouses gross monthly income exceeded the service members.
- The other spouse received the requisite support from the service member for a long time.
- The other spouse received additional payments from the service member, such that the Commander credits the service member for regular and recurring payments already maintaining the other spouse.
- The spouses have lived separately and apart for a year or longer.
Where To File For Divorce
If you are a military member and are deployed, you likely have a few options for jurisdiction when filing for divorce. These might include:
- File in the state where you last resided for six months or more
- File in the home state where you pay taxes
- Allow your spouse to file where he or she resides in the U.S.
- If youre stationed in the U.S., file in the state in which you are stationed, even if youre not a resident of that state.
Many military members have these additional options, because states frequently eliminate the residency requirement when an active duty service member wants to file for divorce.
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Split Of Military Benefits Depends On The Courts
Divorce settlements are often impacted by the benefits a spouse is eligible to. Partners have a legal right to certain parts of their spouses income, wealth, and estate. Military divorce is no different. Savings, property, and other assets shared between you and your spouse can be subject to division. But the separation doesnt stop here. Military benefits can also be divided, if the courts choose to do so.
Partners of military personnel have legal rights as part of The Uniformed Services Former Spouse Protection Act . This is a federal law that gives benefits to both married and unmarried spouses. Some of the benefits it offers include healthcare, commissary, and exchange. One of the key things it gives spouses a legal right to are the retirement benefits of people who are or have been employed by the military.
Military pensions are considered assets in divorce proceedings. If a pension is to be divided then the court must have jurisdiction over the military person, something that comes via consent or the service persons residency. However, consent can be inferred by the court and this may come from the military members participation in the proceedings.
As A Civilian Spouse I Decided To Move Off Base After Filing For Divorce From My Enlisted Spouse Does My Spouses Base Housing Count As Income For Purposes Of Calculating Support
If a civilian spouses access to base housing through their enlisted spouse counts as support, then an enlisted spouses base housing or BAH will count as income they receive when it comes time to calculate child support or spousal support. It makes sense if the service member did not receive base housing or BAH, they would have to pay for housing, so the value of the housing they receive counts as income.
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Will The Military Give Me A Lawyer
Each branch of the military has legal assistance attorneys who are located on most bases. In general, these attorneys cannot represent you in your divorce, but they can be helpful. They can also:
- write letters for you
- answer questions, including those of your private lawyer, if you have one
The spouse of a service member can also seek the help of a military legal assistance attorney at any base and from any branch of the service. For example, the wife of a soldier can get help from a Marine Corps legal assistance attorney, and the husband of a sailor can get help at a Coast Guard legal assistance office.
Employing a civilian lawyer is the best course of action in most cases. If you are low income, you might qualify for legal help from a non-military legal aid organization. To find legal help closest to you, follow the steps outlined here. Then search for “divorce.”
What Are The Methods For Dividing Retirement Pay
There are three ways the military will accept a military division order. You can write a percentage, you can write a dollar amount, or you can write a hypothetical award.
A percentage can be stated in traditional form or by use of a formula that converts to a percentage like the Time Rule Formula. For example:
Participants Accrued Benefit shall be allocated:
If we plug in data points it might look something like this: 20 years of service earned during marriage divided by 30 years of total service equals 66% states as a percentage, and if you multiply that by 50%, the resulting percentage would be 33% of total monthly benefits.
In addition to percentage , the Military accepts a dollar award to pay a former spouse on a monthly basis. However, for Military plans-be careful using a dollar amount because the military has regulations in place that state if a dollar amount is used, cost of living adjustments are excluded .
For example, if you wrote into an order: Former Spouse is awarded $500 a month, plus proportional cost of living increases, the military would only pay $500 a month and ignore the rest regarding the cost of living.
This is a different procedure than many litigants are used to with private plans-where if you write something the Plan does not agree with, the Plan will reject the entire order and tell you to re-write it to fix the sections the Particular Plan does not agree with. The military will just process parts of the order.
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Base Housing In A Military Divorce
Military service offers a number of economic benefits to service members and their families, not the least of which is housing. Military families may live in family housing on base, or off base in private housing. Families that qualify to live off base receive a Basic Allowance for Housing that may vary with the cost of living in their area.
Most service members and their spouses who are considering divorce are understandably concerned about how the divorce process, and the end of their marriage, will affect their living situation. Because this is such a frequent concern, we would like to address some of the most frequent questions we hear on this topic.
Should I Start Looking For A Divorce Attorney
Although a Judge Advocate General officer can provide a separating or divorcing member of the military or the members spouse general advice about military benefits, the officer cannot provide advice to both. The officer cannot represent either spouse in state court. Since divorces are dealt with in state court, attorneys in the state where the divorce petition is filed must be retained.
The state attorney selected should be one familiar with how military regulations and federal statutes affect divorce proceedings. Specific laws and regulations include: Servicemembers Civil Relief Act , Uniform Services Former Spouse Protection Act , the Survivor Benefit Plan , as well as knowledge about how garnishments of military pay can be accomplished.
Where should I file the petition?
A divorce petition must be filed in the United States even if the couple is living overseas. The petition can be filed in:
- The state where the nonmilitary spouse resides.
- The state where the military member claims legal residency.
- The state where the military member is currently stationed.
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If I Am Living In Base Housing During The Divorce Process Can I Get Temporary Family Support From My Spouse
When a military service member and their spouse are separated, each branch of the service requires payment of temporary family support, at least until such time as a civilian court orders spousal support and child support in the case.
Army Regulation 608-99 provides that While the soldiers family members are residing in Government family housing, the soldier is not required to provide additional family support.
That said, living in base housing to which you have access through your spouses military service may constitute sufficient temporary family support. Army Regulation 608-99 provides that While the soldiers family members are residing in Government family housing, the soldier is not required to provide additional family support.
However, if a civilian court orders additional spousal and/or child support, that provision of AR 608-99 does not mean the service member does not have to comply with the civilian courts order. If spousal or child support is ordered, the civilian court may consider the value of the government housing a credit against the support obligation.
Military Benefits After Divorce
Military spouses determining their military benefits after divorce face a complex process of understanding both civil code and military regulations. It is best for spouses to familiarize themselves with these matters before getting divorced, if possible, and to seek legal counsel for assistance.
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If Your Spouse Committed Adultery While Serving
You should use this leverage with wisdom. Do not disclose the affair to your spouses command. Once you have done so, you lose most all of your leverage because your service member will endure the consequences, whether you want them or not, and whether you think they are serious enough or not.
The fear of the possible consequence to the service member is where the leverage in your negotiation lies.
Do not disclose the affair on your Petition for divorce either, until you have attempted to work out your case with your spouse and with your lawyer if applicable, and have come to the highly certain conclusion there there cannot be a settled amicable divorce. The Petition for divorce is a public record document, so by alleging it in the petition, you are doing the same thing as you would be by calling your service members command and reporting the affair.
We see some spouses using their knowledge of an affair to extort their service member spouse out of more money. This could backfire. It is better to handle this through your lawyer because if you are demanding far more than a Court would deem reasonable, you could be viewed as abusing your position as a service members spouse. Asking too much of your spouse, more than he/she can offer, in exchange for your silence could be eventually disclosed to your Court, and harm rather than hurt your outcome, in the authors opinion.
Eligibility Under The 10/10 Rule In Military Divorce
The number 10 in the 10/10 rule is related to the eligibility requirements of spouses who are seeking payment directly from the DFAS.During a state hearing during a military divorce, if the court awards retired pay to an ex-spouse of a military member, that percentage is considered part of the marital property. The USFSPA will enforce the payments if the following are in place:
The spouses were married for at least 10 years
During the course of the marriage, the military member spouse performed their duty for at least 10 years, which is credited toward their eventual retirement
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