Divorce is a difficult process for anyone. When you add in the complications of the possibility of deployment, division of benefits, and other issues that are part of divorce when one or both spouses are members of the military, you need to secure the representation of an attorney who has helped people just like you before.
Family law attorney David Pedrazas has been helping people face the challenges that are present when military service is complicating the divorce equation. During his more than 20 years of service, he has helped many people through difficult situations. In one instance, he went through mediation via Skype with a client who was in a bunker in Iraq.
No matter what type of situation you are facing, David will work with you to help you get the best terms for your future.
Salt Lake City Military Divorce – Frequently Asked Questions
A petitioner is required to serve a respondent with a divorce petition, summons, or other documents within 120 days from the date the petition is filed in the family court. Or, you can serve the respondent first, and then file with the court no later than 10 days from the date of service. In civil cases, military service members do have special protections against judgments of default due to nonresponse.
See the Utah Courts’ Online Court Assistance Program (OCAP), Service of Process in the Utah Code section regarding requirements for special service on people in the military and in various other kinds of “special cases.”
The critical information needed to locate a member of the military is the person’s Social Security number. If you cannot obtain the Social Security number, there are various other approaches you can try. Your military divorce attorney can help in the process of contacting your spouse.
The role of the Legal Assistance Attorney (LAA) (in the Judge Advocate General’s office) is to help military members and their families with civil matters. An LAA might be able to confirm where your husband/wife is currently stationed for duty and relay messages through your spouse’s chain of command. See the list of key contacts for all the U.S. military branches in Utah, for purposes of locating and serving military members with legal documents.
See the Utah Courts’ webpage for more details on Serving Papers under Rule of Civil Procedure (URCP) 4, or for cases already underway when papers are served, see Utah Rule of Civil Procedure 5. Also, see 50 USC 3911 for helpful legal terms and definitions relevant to military divorces.)
States have various degrees of relaxed residency requirements applicable to military divorce cases. But, generally speaking, for couples in which one or both spouses is in the military, it is not required that both spouses establish residency in the state where their divorce is filed. However, to obtain a divorce in Utah, at least one of the spouses must have resided in one county in the state for a minimum of three months that immediately precede the filing of the divorce petition.
If there is an issue regarding custody of a minor child, it is usually required that the child has resided in the state with one or both parents for a minimum of six months. However, there are potential exceptions to this requirement.
Before deciding where to file for a divorce in any state, you should be fully informed on how the division of military pensions in divorce cases are handled in that state. The Uniformed Services Former Spouses’ Protection Act” (USFSPA) governs divisions of military pensions. Under this federal law, in a divorce, a military member’s state of legal residence always holds the power to divide the military pension.
In other words, if you file for a divorce anyplace other than the state in which the military member has a legal residence, the court processing your divorce might not have the necessary authority to divide your spouse’s pension. (The military member still may voluntarily consent to abide by the court’s decision on how the pension will be divided.)
Further, some states have their own laws that can impact what happens to the military pension. This is a complex topic that requires guidance from an experienced military divorce attorney in Utah, in order to avoid complications or an inappropriate outcome.
Entitlement to any portion of a military service person’s, Retirement Pay, Pension, and Health Care Benefits are all subject to stipulations in the USFSPA. This federal law specifies the criteria for a former non-military spouse to qualify for military benefits after divorce. However, Utah state law also applies and may affect court orders with regard to some benefits for non-military ex-spouses in divorce cases.
Retirement Pay: A non-military spouse may be granted a portion of his or her military ex-spouse’s retirement pay in a divorce decree to be directly issued from the U.S. Defense Finance and Accounting Service (DFAS), if the marriage was for a minimum of at least 10 years and if the military spouse was on active duty during that period.
Under Utah law, pensions and retirement pay are marital assets. In cases of shorter marriages, of less than 10 years, after divorce, the DFAS does not pay the ex-military spouse retirement payments directly. Any such payments to be paid must be made by the non-military ex-spouse directly.
TRICARE Benefits: For TRICARE, the USFSPA adheres to the federal 20/20/20 rule in determining a non-military ex-spouse’s eligibility and percentage of entitlement to those and other health benefits. This means:
- If the ex-spouse of a military member who served for a minimum of 20 years, was married to the military member for a minimum of 20 years, with at least 20 years of the marriage and 20 years of military service overlapping, then the ex-spouse is fully eligible for TRICARE benefits.
- If the ex-spouse’s marriage to the military member overlapped with a minimum of 15 years of the member’s military service, then the ex-spouse can receive TRICARE benefits for up to one year after divorce.
Overall, the legal process of divorce is about the same or a little longer if a military member is on active duty stationed in a remote location, or is permanently stationed abroad. Normally, a person serves divorce papers on his or her spouse, then the spouse is required to file a formal response within a certain number of days. The court then scheduled the next steps in the divorce process (such as hearings, and/or mediation, etc.). But, there are additional factors that can affect the length of time it takes to finalize a military divorce. For example,
In recognition of such potential issues for military members, the Servicemembers Civil Relief Act (SCRA) allows for changes in the court’s usual divorce process timeframes and deadlines, when one spouse is on active duty. The SCRA is a federal law that enables service members on active duty to request a “stay” (a delay of the court proceedings).
The law applies in cases of divorce, property division, child custody, spousal support (alimony), child support, and other matters, when duties prevent a military member from responding to or participating in, an action by the court.
The initial stay allowed is for no less than 90 days, after which the court may grant extensions. A divorce cannot be postponed indefinitely, but the stay can be granted to delay action by the court for as long as the military member’s duties impede their participation.
After a military divorce, there are various possibilities for continued military benefits:
Health Care Coverage — There are two possibilities in terms of entitlement to continued healthcare coverage for a non-military spouse divorced from a military spouse:
- If the 20/20/20 rule, requiring an overlap of 20 years of marriage to the non-military spouse with 20 years of military service by the military spouse, has been met, then the non-military spouse is entitled to continued full benefits at no cost, for as long as the individual does not remarry. If the 20/20/20 requirement has nearly been reached, this can be an important reason to request that the court wait to finalize the divorce until after the date that the 20/20/20 rule is met.
- The other possibility is that a former non-military spouse is not eligible for TRICARE. If the non-military ex-spouse was covered under TRICARE or TAMP on the day prior to the divorce date, there are multiple options. The individual may purchase private health care insurance, or obtain coverage through the Continued Health Care Benefit Program (CHCBP) for up to 36 months following the divorce date.
If the former non-military spouse has met the 20/20/15 rule, he or she can qualify to extend CHCBP coverage for as long as 48 months after the date of the divorce. He/she might qualify for continued long-term coverage through HCBP if a number of conditions apply. Contact the CHCBP administrator for complete details and assessment of eligibility.
Survivor Benefit Plan (SBP) — The SBP pays 55% of the military member’s selected base amount to his or her beneficiary. The family court in a >Utah divorce case can require SBP coverage for the non-military ex-spouse after divorce:
- In the divorce, the court can require SBP coverage for the non-military spouse and send the military pay center for SBP a copy of the court order for the divorce along with the necessary form to enter a “deemed election.” An order from the court for “former spouse coverage” is required. The deadline for making a “deemed election” of this kind is one year from the date of the court’s order for SBP coverage or from the date of divorce decree granting this coverage.
- The SBP benefits are discontinued if the ex non-military spouse gets remarried prior to reaching age 55. However, the coverage is reinstated if the new marriage ends in divorce, annulment, or death.
Thrift Savings Plan (TSP) — Military service members who have elected to contribute to a Thrift Savings Plan during the period of their active service build retirement savings account similar to a 401K or IRA. The TSP savings may be divided between the spouses in a divorce. Or, the TSP account can be granted to one of the parties in exchange for another asset as part of the division of property.
There is not a Federal law entitling the former spouse of a person in the military services to any percentage of the military member’s retirement pay. A former spouse can, however, be awarded a portion of the military ex-spouse’s retirement pay through a State court order. The USFSPA, Title 10 allows State courts to divide a service member’s retirement pay in a divorce.
The USFSPA stipulates that a non-military spouse must be married for a minimum of 10 years to the military member, who must have been on active duty in that period, in order to be entitled to have a percentage of their former spouse’s retirement pay paid directly from the DFAS.
The distinction is that when a non-military spouse was married to the military member for a period of less than 10 years, any disbursements of retirement pay to the non-military ex-spouse would be made by the military ex-spouse. Such payments would not come directly from the DFAS.
Base privileges, including commissary use, theater privileges, exchange, etc. are determined by whether or not the former marriage met the 20/20/20 rule for entitlement to these uses of military resources:
- The marriage to the military member was for no less than 20 years.
- The military ex-spouse was in the military for no less than 20 years.
- The periods of marriage and the military service overlapped for at least 20 years.
If an ex non-military spouse’s situation meets all three of the above criteria, he or she is entitled to full base privileges for as long as he/she does not become remarried.
Divorces in which one or both spouses are in the military are inherently more complicated than a typical civilian divorce. There are matters of property division, health insurance benefits, base privileges, possibly child custody and support, and other concerns that are added to the usual issues in a divorce process.
When one spouse is on active duty deployed to a remote location, all the parts of the divorce process become more complicated. From service of legal documents and response times to resolving child custody questions, and many other pressing legal matters, a military divorce is fraught with unique processing circumstances.
It is necessary to work with an experienced Utah military divorce attorney who knows all facets of the special processes and unique considerations involved in a military divorce in Utah. A knowledgeable Salt Lake City military divorce lawyer will help ensure that all your rights are protected and that you get everything that you are legally entitled to receive in your divorce.
For various reasons, people may want to postpone or avoid divorce are often to delay or prevent the financial losses that come with divorce for many couples who no longer want to be married. Other reasons sometimes include a sense of moral responsibility or religious imperative that may disallow divorce as an option. In such cases, a legal separation may be a preferable temporary alternative to filing for divorce.
- Health Insurance Benefits — You can continue getting health insurance benefits under your spouse’s employer group plan, if you prefer it due to its coverage options.Tax Filing Benefits — There are numerous benefits of filing income taxes jointly as a married couple, vs. filing a return as a single person. A legal separation allows you to stay married for these tax filing purposes.
- Military Benefits — Remaining married entitles you to continue TRICARE and your military benefits as the spouse of a service person, including health insurance, death benefits, base privileges, etc.
- Social Security Benefits — If you are married for a minimum of 10 years, when you reach retirement age you will probably qualify for social security benefits that are based on your ex-spouse’s income.
Keep in mind that in some states, legal separation is mandatory prior to divorce. Others don’t require it, but they legally recognize it. Yet others do not acknowledge a legal separation.
- A continuing need for cooperation with your ex-spouse remains, although minimal, to communicate through mail about changes in insurance carriers or policies, tax filing information, etc.
- As the legal separation remains in force, you do not have the freedom to remarry.
Although you do not have to forfeit your parental right to be considered by the court to be awarded child custody in a divorce, being deployed can present practical issues. In your military divorce, you will need to work with your spouse to develop a family care plan, and make sure you are clear on your rights under the Servicemembers Civil Relief Act (SCRA), including the possibility of delaying legal proceedings to decide child custody until after you return from your service in a foreign location.
For nearly two decades, the divorce rate for members of the military has remained around 3.5% for enlisted people and around 1.7% for officers. Some statistical representations for particular segments of the military show that divorce rates for women are significantly higher than for men. But, in the overall numbers, the differences in military divorce rates based on gender do not appear to be significant factors. (2020)
To obtain a divorce, the first step is to file a petition for divorce with the family court in Utah. Then, you must have your spouse served with the petition, or a summons to appear in court, or another form of acceptable documentation for the purpose of notifying him or her.
The document must be served within 120 days of the date that you filed the petition with the court. Or, you may have your spouse served first, and must file afterward with the court within 10 days. In divorces and other civil cases, military members have the benefit of special legal protections preventing court judgments against them for default by failure to provide timely response.
The Social Security number is the information needed for locating someone in the military. But, there are various other approaches. The military branches offer assistance in civil matters from their Legal Assistance Attorneys (LAAs), for military service members and their families. An LAA may be able to locate your spouse and convey messages through the chain of command. See additional resources for obtaining a military divorce in Utah.
Military service members on active duty have special protection under the law from judgements of default due to failure to respond to a petition for divorce while they are deployed. Further, the active military member must be served directly in person in order for a state court to have legal jurisdiction in the divorce case.
The amount of child support ordered by the court is based on both parents’ incomes. Under Utah law, courts are normally prohibited from ordering child support that exceeds between 50-60 percent of the military service member’s pay and allowances. The amount awarded to the recipient depends upon variables in the payor’s other child support obligations, and possibly other factors that may be considered. If there are payments in arrearage, the maximum can be set up to 65 percent. (2011)
This is the same limit applied in civilian child support cases in the state of Utah. Use the Utah Child Support Calculator to help you get a preliminary sense of the general process used to determine the child support amount that may apply in your divorce case.
In the divorce case of a military officer, the judge considers that your qualifying income is not necessarily equal to the amount you must report for federal income tax purposes.
Federal laws governing military members do not include guidelines regarding amounts of alimony awards in Utah divorce cases. The amount of alimony awarded by the court in a military divorce is based on the same criteria for determining the amount in civilian divorce cases, which is calculated based on a number of financial and other factors involving the recipient and the payer.
Considerations by the court can include the number of years of the marriage, both spouse’s income capacity, various facts of the history of the marriage, among others questions. The total amount of alimony that can be ordered by the court normally cannot exceed 60 percent of a military service person’s pay. If there are payments in arrearage, the maximum can be set up to 65 percent.
Experienced Family Law Representation Dedicated To Protecting Your Rights And Best Interests
At the Law Office of David Pedrazas, PLLC, attorney David Pedrazas understands the unique challenges that military couples face when divorce is becoming a reality. He can help you overcome the complications that are presented by aspects of military service such as:
- Preservation of benefits such as retirement and TRICARE
- Child custody issues and how they are impacted by deployment
- Child support
Contact Salt Lake City Military Divorce Attorney David Pedrazas
When you are facing divorce and you or your spouse is a member of the military, having an experienced attorney as your guide can be the best step you can take toward making sure that you are able to effectively pursue the resolution you need. Turn to the Law Office of David Pedrazas, PLLC, for the skill and experience you need. To schedule a Legal Case Review, call 801-263-7078 or contact us online.