Divorce is always loaded with complications, and it’s one of the most painful experiences a couple can possibly go through. The emotional strain of tearing apart a family that you thought would be together forever is bad enough, but when it comes to divorce and military families, it gets even worse.
These procedures can be exceptionally complicated, and there are specific laws surrounding military divorce, both federal and state, which apply to dissolution of marriage when one or both spouses are in the service. It’s important to understand how intricate the division of retirement accounts and pensions can be, as well as issues of child custody and other benefits.
Let’s take a look at divorce in the military and what you need to know about military retirement garnishment in divorce to help you determine your rights in a settlement.
Federal Military Divorce Laws
Military divorces can be much more complex than normal civil divorce proceedings. Members of the armed forces have protection under the law that don’t apply to civilians. These measures are in place to provide peace of mind to service members, and most apply specifically to those on active duty or those coming home from overseas.
Most important of these is the Servicemembers Civil Relief Act, which states that service members cannot be sued (or sue) for divorce while on active duty or within sixty days of coming back from active duty. This means that if you or your spouse is assigned to active duty, you will have to stay married for a bit longer.
State Military Divorce Laws
Specific laws regulating military divorce can vary by jurisdiction. You’ll need to know which court system holds authority over your marriage before you can file for divorce, as it will have a direct effect not only on the divorce itself, but in issues like military retirement garnishment in divorce — how your pension can be split between you and your former spouse.
In general, your divorce jurisdiction will be the state in which you have permanent joint residency with your spouse. This can present problems if that legal residence is different than the place where you’re currently stationed. If this is the case, your unique situation may allow you to file either in your spouse’s state, where you are currently stationed, or wherever your legal residency is claimed.
Because of these options, you may wish to discuss your options with a military divorce attorney who can help you to research which laws might be the most advantageous.
Child Custody in Military Divorce
Another issue that comes up in every divorce, but which is also complicated by military service, is that of child custody. Spouses who are active duty service members are often not home as often as the non-military parent. It’s more likely that the non-military spouse will be granted full custody due to their more regular presence and the lack of risk they assume on a daily basis. In short, a non-military parent offers more stability than their active-duty military spouse.
On the other hand, it’s also often the case that military spouses are placed on the hook to pay out larger spousal and child support payments because of their lack of ability to visit or contribute to childcare. This can put a great deal of financial strain on the military spouse, who might not draw down a significant salary to begin with.
The rationale is that it’s difficult to maintain a dual-income household when one spouse is constantly deployed. This can leave the stay-at-home parent facing challenges when it comes to finding employment after many years out of the workforce. In today’s society, however, where many homes have two working parents, this isn’t always as true as it once was, though it can require a burden of proof in court.
Military Retirement Garnishment in Divorce
The “Ten Year Rule” is a common factor in dealing with military retirement garnishment in divorce. Under the Uniformed Services Former Spouse Protection Act, judges can view military retirement as marital property given the right circumstances. These circumstances are straightforward and are the reason it’s referred to as the ten year rule.
- First, spouses must have been married for ten years.
- Second, one spouse must have ten credited years in the armed services.
- Third, the ten years of duty must overlap with the ten years of marriage.
If these conditions are met, the portion of your military retirement garnishment after divorce will be paid directly to your spouse by the DFAS (Defense Finance and Accounting Service). Because of this, in some cases spouses will try to stick it out until they reach this benchmark.
The specific share to which a spouse is entitled is not clarified under the law and is generally awarded by a judge or by specific state laws in your jurisdiction. For this reason, you’ll want to take specific divorce laws into account regarding division of assets. In general, a spouse can be eligible to receive up to half of pension funds, but in some cases a spouse might be granted a lower percentage in exchange for an immediate, more valuable asset like property.
An increased version of the ten year rule is called the 20/20/20 rule. It carries the same requirements as the ten year rule, but doubles (20 years of marriage and service, overlapping). It may render a spouse eligible for ongoing benefits like base privileges and TRICARE health insurance. In order to maintain these benefits, the non-military spouse may not remarry. If they do, the ongoing privileges and healthcare can be revoked.
Slowing Down the Divorce
In most cases, when a spouse serves divorce papers, the spouse being served has a certain number of days to file a formal response called an “answer.” At this point the divorce proceedings move forward. In cases of active duty, however, the Servicemembers Civil Relief Act can allow for an extension of this time schedule and deadlines. Under this law, a service member on active duty can request a stay of proceedings if their current military duty prevents them from responding to the action or participating in proceedings.
When requested, an initial stay can be for at least 90 days, and the court may, at its discretion, grant additional stays beyond this, but only while active duty interferes with participation in the proceedings. To obtain this pause, a written request must be filed, using the proper paperwork and format in the state of your jurisdiction.
The Military and Representation
While most military branches offer legal assistance on base for their service members, the services they can provide are limited. They can review documents, write letters, negotiate and answer questions. They cannot, however, represent you in your divorce case. Spouses can also seek the same kind of military legal assistance on base.
In the end, however, when it comes to moving the divorce case forward, both spouses will need to seek civilian legal representation. The military generally doesn’t become directly involved in their servicemembers’ divorce cases.
Determining Child Support
Again, child support payments from active duty service members can be quite high. The specific amount will be determined by the courts in your state but is generally based upon the total entitlements the servicemember gets, including their allowance for housing subsistence and any special pay. Only the courts can set and change the amount of child support.
In addition, almost all of the service branches maintain rules regarding how much should be paid, and on-base legal assistance can advise on what to expect at a minimum level. Usually the courts will then follow the guidelines of their state. Such support will be normally paid through wage garnishment; you will submit your court order to the military pay center and the percentage will be automatically deducted from your pay.
There are some exceptions to this rule. The Defense Finance and Accounting Service, or DFAS, handles all branches except the Coast Guard, and the court order has to meet specific requirements before they will garnish wages. Local military legal assistance attorneys can help you make sure you meet the right requirements.
Savings and Survivor Benefits
Two assets that are often overlooked in proceedings are Thrift Savings Plans (TSPs, which is like a 401(k) for the military) and Survivor Benefit Plans (SBPs). When service members contribute to their retirement savings, the TSPs can be divided between divorcing spouses. Likewise, service members who buy death benefits, or SBPs, must name a spouse as the plan beneficiary. Without this coverage, pension plans terminate when the military spouse dies.
Because of this, courts can sometimes mandate that a servicemember purchase an SBP upon divorce. When this occurs, the servicemember should send the proper forms and paperwork to the appropriate pay center within a year of proceedings. They will also need to send a copy of the divorce order.
Only one spouse can be the beneficiary of an SBP. This can present complications if you remarry. If your spouse remarries before they turn 55, their benefits will be suspended, which opens you to naming a new beneficiary. Otherwise, you may need help from an attorney to reassign benefits to your new spouse.
When the military spouse is stationed overseas, the divorce process can be even more complicated. For example, filing for divorce overseas may not be recognized by U.S. Courts, meaning you might still be legally married in the United States. In such instances, cases of jurisdiction come into play again. It’s vital to file in the U.S. if you’re looking for a divorce, even when stationed overseas.
Make sure that you speak with a qualified military divorce attorney, particularly if you own assets like property overseas. Remember also that family members and their property can, at the expense of the government, be brought home before a tour of duty ends.
Talk With a Qualified Attorney
When it comes to matters of military retirement garnishment in divorce, as well as other military separation issues, it’s vital to talk with a qualified and experienced military divorce attorney. At the Willick Law Group, our QDRO Masters have decades of combined experience in representing military divorce couples and in the division of retirement benefits. If you’re in need of help with your military divorce, call us today.