The unique legal issues surrounding divorce in military families affect how assets like pay and retirement pay are distributed to each spouse. A divorce lawyer familiar with the laws and factors surrounding military divorce can provide guidance, general information, and legal counsel for both the military member and their spouse.
Division of Military Pensions
The law usually allows divorce to be filed in either of the spouse’s state of legal residence. There are further considerations for military divorce.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) is a federal law that governs the division of military pensions. It says that the military member’s state of legal residence will dictate how the division will be handled. Essentially, only a court in this state has legal power and authority.
The USFSPA serves to distribute military retired pay to a former spouse. This is not an automatic awarding process as former spouses are simply provided a way to get a check through the Defense Finance and Accounting Service (DFAS).
10/10 Rule
The 10/10 rule of the USFSPA means a spouse can receive their portion of military retirement pay if the couple was married for at least ten years while the military spouse was on active duty (also for at least ten years).
This rule does not affect whether or not a spouse is eligible to receive a retirement check, but who is responsible for providing it. It is still up to the courts to decide how much a spouse can receive from retirement pay and their decision is not based on years of marriage and service. The 10/10 rule allows a couple to get their pension-share check from the DFAS retired pay center.
Child Support Payments
State law usually determines the amount of child support parents have to provide after a divorce. All military services, excluding the Air Force, have rules on how much child support a military member is required to provide children.
The courts base their decision on the military member’s total entitlements including base pay, special pay, and basic allowances. They consider the various elements that can affect a service member’s pay and how amounts can change depending on deployments and base transfers.
Slowing Down Divorce
With an ordinary divorce, divorce papers must be signed within a specific number of days from when they were served. The court then proceeds with mediation and hearings to settle the divorce. However, regular court time schedules and deadlines can be changed if one of the spouses is on active duty.
The Servicemembers Civil Relief Act (SCRA) permits military members to request for a stay to delay non-criminal legal proceedings if their duties render them unable to respond or participate in the court action. This includes all aspects of a divorce, like that of spousal and child support, child custody, and property division. The court will not grant further extensions if the member’s duties no longer interfere with participation in the court proceeding.
Legal Assistance for Military Members
Most military bases have legal assistance attorneys. While they are usually unable to represent the military member in divorce, they can still review and revise legal documents, negotiate on the member’s behalf, and answer potential questions.
Civilian lawyers remain the best option for obtaining legal advice and representation as they are more experienced and equipped in dealing with legal action.
