Active duty service members and veterans often deal with very different
situations and issues than civilians do. While military personnel are
just like anyone else, there are special rules and concerns that they
contend with on a daily basis. One situation where this is particularly
true for active duty service members is military divorce.
Dealing with divorce is already difficult. As we have mentioned before on our
Los Angeles divorce attorney blog, splitting a marriage comes with major stresses. Like any other couple,
military spouses must determine how property will be distributed, how
custody will be arranged, and how
alimony or child support will be paid. However, military personnel have to deal
with unique aspects of these decisions.
For instance, what does a military spouse do if his or her ex-spouse dies?
Will benefits continue? At Stolar & Associates, A Professional Law
Corporation, we hope to answer these questions clearly and succinctly.
Choosing Where to File for Divorce
Military couples can end up having “residence” in several different
states. Where each spouse is from, where they were married, where they
reside, and where they own property can conceivably all be different states.
Not only that, but state laws regarding pension or retirement division
can differ, giving this decision long-term consequences.
For a divorce to file in a particular state, both spouses must agree to
file. This way, one spouse cannot simply choose a state that benefits
them exclusively. In addition, when choosing a state, the spouses are
not required to establish residency to be eligible to file. They simply
have to provide some proof of practical residency. This will also determine
where they will be able to hire an
experienced Los Angeles military divorce attorney.
Proof of residency can include the following elements:
- The state where they vote
- The state to whom they pay taxes
- Where the couple has a banking account
- Where the couple has drivers’ licenses
- Where the couple owns property
Differences in Divorce Law
Any state(s) in which a couple performs one or more of these actions could
conceivably be a possible state for filing for divorce. The differences
in state laws regarding divorce make choosing the right state an important
decision. For example, many military spouses have not developed their
own careers or educational background in order to support their husband’s
or wife’s military career. Choosing a state with a waiting period
for divorce could allow spouses to come up with a plan for their life
States with waiting periods for divorce include (but are not limited to):
- Ohio (1 year)
- New York (1 year)
- Illinois (2 years)
- North Carolina (1 year)
Other laws might also influence the choice you make. In Puerto Rico, for
instance, courts will not divide a pension between an active military
member and his or her ex-spouse. That would be fairly advantageous for
active service members, but deeply inhibiting to non-serving spouses.
Laws such as these are why military spouses need to find an attorney who
is experienced with military divorce and its specific concerns.
Divorce can be complicated by deployment. Some divorce proceedings can
be interrupted or paused because a service member is serving in Iraq,
Korea, Afghanistan, Germany, or elsewhere. However, with the right lawyer,
your personal life does not have to wait in limbo while you or your spouse
For example, if your spouse, assets, children, or home base is in California,
you can choose to file with a
Los Angeles international divorce attorney, who can handle your divorce while you are out of the country. Our experience
with the specific issues surrounding military divorce and the concerns
of active military deployment make us particularly suited to handle your
case. If the above conditions are true for other states, you can also
find an experienced attorney in those states while you are deployed.
Dividing Pension & Retirement Benefits
In 1982, the U.S. government recognized that they had an obligation to
protect the ex-spouses of military personnel. That’s why the Uniformed
Services Former Spouses Protection Act (USFSPA) was passed. The Act permits
state courts to treat military pensions as marital property rather than
income, allowing the court to divide it equitably.
The Department of Finance and Accounting will only grant a maximum of 50
percent of pension to go to an ex-spouse—however, additional benefits
can be agreed upon and paid between former spouses (or ordered by the
courts). After 10 years of marriage (which must also overlap with active
military service), the civilian spouse is entitled to half of the pension
value. However, this amount
is negotiable, and many military couples agree to alternative arrangements
for mutual benefit.
Even in easily-consented
alimony agreements, spouses ought to remember that pension only lasts for as long as the
military member is
alive. Should a soldier die, pension payments will
not go to ex-spouses. That is why many civilian spouses request an SBP,
Survivor’s Benefit Plan, in addition to pension.
This allows ex-spouses to continue receiving support in the event of a
spouse’s death. The SBP is not considered an additional asset, however—it
is an agreement to allow continued payment after death. In order to receive
SBP benefits, the ex-spouse must file for "former spouse" status
on the SBP form within a year of finalizing the divorce.
Child Custody & Child Support
Fortunately for servicemen and their families, there is a higher rate of
child support compliance among active military personnel than civilians.
Part of the reason is that the government has made it clear that soldiers
must be willing to pay
child support and provide for their families. Failure to do so will have
much harsher consequences for military personnel than civilians—and the
civilian penalties are already fairly harsh, as our
Los Angeles divorce lawyer has pointed out before.
For military, child support is paid like any civilian would—out of
monthly income. However, if child support is in dispute or you need to
modify your agreement due to a change in active service, you will need
to notify the court and the Child Support Services agency of your new
status. You also have the power to designate a representative to receive
information and handle your child support case while you are deployed overseas.
Speaking of deployment,
child custody for active military personnel is rarely granted. Military personnel are
often subjected to frequent relocation and deployment—since all
court decisions regarding your children will be in their interests, you
may need to forego primary or physical custody until you retire from the
military. You may also have to pay extra child support because active
duty service members will have limited visitation or shared custody, putting
the bulk of childcare expenses on the civilian spouse.
For specific answers regarding your divorce,
contact the Los Angeles military divorce attorneys at Stolar & Associates, A Professional Law Corporation.