Military lawyers have specialized knowledge in military laws and legal issues affecting members of the military. The military is regulated by its own set of rules and regulations, which can sometimes be different from those governing civilians. These must be factored in for a divorce claim, as they can affect the outcome of the proceedings greatly.
Military Divorce Lawyers
What are Military Divorces?
“Military divorces” are divorce proceedings where one or both spouses are members of the U.S. military. Due to the differences in laws and regulations, such divorce proceedings require specialized attention.
Military members in general can be subject to different life circumstances than many non-military persons. For instance, the divorce proceedings can become complicated if certain factors are involved, such as:
- One or both spouses are overseas
- There are disputes over military-related assets and benefits, such as a military spouse’s retirement, veteran benefit payments, or health care benefits
Starting at the very beginning: Where do you file for divorce? What court has jurisdiction? Your home state, your spouse’s home state, or the place where the military member is stationed?
Actually, you can file in any of these places. This is an example where divorce law treats military families differently than non-military families. Under general state law, it wouldn’t be possible to file for divorce in either of your home states if you’re not living there. Military law overrides state law, and so the divorce can take place in a home state no matter where you are living.
The biggest difference between military divorce and standard divorce is that there are numerous laws that protect the military spouse. There are federal laws that apply across all 50 states that are special to military spouses. The nation understands that you have made many sacrifices because your spouse is in the military.
You may have had to move around a lot, which can be disconcerting. You may even have had to move out of the country. You may well have had to postpone (for years) your own goals and educational and career aspirations. You probably have not been able to make much money on your own, and so you are underprepared to live on your own after the divorce.
Because the military wants to recognize these sacrifices, Congress passed the “Uniformed Services Former Spouses’ Protection Act.” This guarantees that you will be protected when it comes to splitting up assets in a divorce. Instead of normal state law, your divorce division of assets will be governed by federal law.
Here are some of the areas where special military provisions in the law will affect the division of your assets:
Servicemembers have different rules and regulations with regard to taxes that make child support a more complicated process. Because some military income and deployment benefits are not taxable, a court must decide whether to base child support and spousal support obligations on pre-tax income or post-tax income.
Thrift Savings Plan
Thrift savings plans are defined contribution plans similar to 401ks. The funds that you and your spouse accrued during the time of your marriage are subject to division no matter the duration of your marriage. You are only entitled to the funds that accrued during the time of your marriage, and not the entire account.
VA Disability Payments
Although VA disability benefits are not subject to division in any divorce proceeding, they count toward the military member’s income. If child support or alimony is awarded, the court must include the benefits received by the military member, even if not considered to be a marital asset.
Further, if the military member defaults on these support orders, you will be able to attach a levy or garnish the payments made by the VA to the military member. This makes it much easier to collect the missing support money.
Post 9/11 GI Bill
This benefit can be a significant asset to a military member or their family. It provides for $160,000 to be paid towards an education. However, this benefit is not directly divisible in a divorce. Instead, the military member may agree to share this with a former spouse who was entitled to the benefit during their marriage. Therefore, this item may not be divisible by the court, but it can be used as a significant negotiation tool.
Survivor Benefit Plan
This benefit is similar to an insurance policy held for retirement payments. It allows a military member to designate a beneficiary to receive a portion of their accrued retirement funds after their death. For a former spouse to be named as a beneficiary and entitled to receive the funds after a divorce, they must have been married when the military member reached retirement age, or they had a child together, or they were married for at least one year.
The treatment of health care coverage in a divorce proceeding depends on the length of marriage between the parties. If the parties were married for 20 years, the military member served for 20 years, and there is an overlap of 20 years between the length of marriage and military service, the non-military spouse is entitled to continued Tricare coverage. If there is only a 15-year overlap between the 20-year marriage and 20-year service, the spouse is entitled to Tricare coverage for a year after the divorce.
If neither of these time limits are met, or the year allotment of coverage has ended, the spouse is entitled to enroll in the Continued Health Care Benefit Program. This program allows you to retain the same benefits under Tricare, however, you will be personally responsible for the premiums.
Promotion After Divorce
If a military member is promoted after divorce, the promotion enhancement due to retirement would normally be a non-marital asset. Courts have struggled to understand how to implement this, however. The result is that many times the military member’s promotion enhancements, even if due solely to actions made after the divorce, are divided to the ex-spouse.
A servicemember who has served 20 years is entitled to receive a military retirement. Per the Uniformed Services Former Spouses’ Protection Act, state courts may but are not required to divide a servicemember’s “disposable retired pay” upon dissolution, according to that court’s domestic relations laws. (“Disposable retired pay” is defined as the gross retired pay minus (A) payments back to the United States for prior military retirement overpayments and for recoupments required by law resulting from entitlement to retired pay, (B) court-martial forfeitures, (C) pay waived to receive disability payments from the VA.)
Under federal military law, the division of a military retirement plan is available in all divorces, unlimited by their duration. However, it is important to note that a non-military spouse’s portion of the retirement is limited to the length of marriage. For example, if you and your spouse were only married for 3 years and your spouse has served in the military for 8 years, you will only be entitled to half of the amount of retirement funds accrued during the time of your 3-year marriage.
You are not entitled to the full 8 years of service unless you were married during all of those 8 years. However, if you have been married for 10 years and the military member has served for 10 years, you will be paid half of your spouse’s total retirement benefits. There is an additional perk – you will receive the payments directly from the government, and won’t have to rely on your spouse to pay them.
Servicemembers Civil Relief Act
While the legal policies discussed above are designed to make sure marital assets are divided fairly in a military divorce, and to protect the military spouse, there is one law that is designed only for the military member.
The Servicemembers Civil Relief Act protects military servicemembers from being sued while on duty and up to one year following service. This may present a challenge to you if you have to sue your spouse after the divorce for child support or other financial support.
How Can a Military Lawyer Help My Claim?
Military divorces can be quite complex and may require the assistance of a professional. Military lawyers have specialized knowledge of the various family law issues and hurdles that couples face in such situations. While they may not always be military personnel themselves, they will have experience in dealing with the types of matters that are common in a military divorce situation.
You may wish to hire a divorce lawyer in your area if you need guidance or representation for your claim.
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