Divorce is a complicated and confusing, often gut-and-heart-wrenching experience for everyone, regardless of profession or position in life. But if you or your spouse, or perhaps both of you, serves in the U.S. military, you face specific issues, rights, and obligations that civilians do not. A military divorce is governed by both state and federal laws and subject to military policies, thus many unique factors come into play.
The complicated, multiple moving parts make it imperative that you seek out education and legal help experienced in military divorce. You’ll need help to:
- decide in which state you will file
- calculate child and spousal support amounts
- determine custody and visitation rights
- handle pensions, health, and life insurance benefits
Residency Requirements: Where to File for a Military Divorce?
It’s common for military couples to grow up in different states, marry in another state, own property in a third state, and be recently deployed to a fourth state in which they have not yet established residency. Deciding where to file for divorce is extremely important because it is the laws of that state that will govern the proceedings.
The court that grants a divorce must have “jurisdiction,” or controlling rule, over both spouses. For a court order ruling on a military retirement plan to be enforceable, the divorce must be filed in a state:
- where the military spouse is living
- where the military spouse is a legal resident
- a state that both spouses agree to, even if one spouse does not have legal residency in the state
Some states, such as North Carolina and South Carolina, require a one-year waiting period between the filing and finalization of a no-fault divorce. This period of time may benefit a military spouse while they sort through the many details. Texas and Florida have no required separation period. Virginia allows a deployment to be considered as a legal separation period if one spouse went into the deployment with the intention that the separation would be permanent.
While it is possible for the spouse at home to file for a divorce while the partner is overseas, it is rarely done. The complicated logistics involved, coupled with the legal protections afforded a deployed spouse, can result in postponements until the spouse returns home.
Child Custody and Child Support in Military Divorce
If a parent deploys frequently, sole or primary custody of the children is usually not sought, and the absences cut into their visitation time as well. The custodial spouse may be able to receive additional child support due to the larger childcare burden placed upon them.
Utah requires that if a custodial parent is deployed, provided the arrangements are acceptable to the noncustodial parent, the full-time care of the children can be transferred to them in the custodial parent’s absence. If the noncustodial parent is deployed, their parental rights and visitations can be transferred to a close family member.
Child support is determined by the governing state’s guidelines, but each branch of the military has its own guidelines to determine an appropriate amount if the court order is still pending. The service member’s base salary, plus housing allowance and other forms of non-monetary compensation such as meals are used to calculate support. Payments for the children’s health insurance or day care are also included. The child support payment can be automatically withdrawn from the service member’s pay. If the service member fails to honor the child support agreement, the custodial parent can enlist the help of the commanding officer, but only a court order can enforce resumption of payments. In the case of several missed payments, the court may order a wage garnishment.
In families in which both parents are service members, a Family Care Plan is required to establish policies, responsibilities, and procedures pertaining to the care of dependent children when a service member is away.
Military Divorce Retirement Pay, Pensions, and Benefits
Military members who retire after at least 20 years of active service receive a retirement pension for the rest of their lives. Because military pensions are one of the most complicated factors in a divorce, this is where you really need an experienced legal advocate on your side who is familiar with the intricacies.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows courts to consider military retirement pay as either sole or community property with the amount determined and awarded governed by the specific state laws. While spouses are entitled to half of the pension if they were married to the service member for 10 years, how the pension is divided is flexible. Some courts may award more than 50 percent to the nonmilitary spouse, and often a percentage of the pension may be exchanged for another valuable asset.
It’s important to ensure that the divorce decree stipulates a time frame in which the retiree will apply for benefits because only at that time will the spouse have access to their share of the benefits. Other issues to be considered include the Survivor’s Benefit Plan, Thrift Saving Plan, the Service Members Group Life Insurance policy, and medical benefits under TRICARE.
Military Divorce Attorney Utah
As we promised at the start, a military divorce can be “complicated and confusing!” While legal assistance is provided on base, the attorneys cannot represent you in your divorce. Utah Military Divorce Attorney David Pedrazas has helped civilian spouses through these difficult times for over 20 years. Call us at 801-263-7078 and we’ll guide you through the complexity, onto a new life!