Even under the best of circumstances, divorce is never easy. Being in the military, or having a spouse who is, adds a layer of complexity and stress to the divorce process. To make matters harder, many divorce attorneys are unfamiliar with issues unique to military divorce. If you are preparing to file for divorce, or your spouse is, here are five things you should know to help your military divorce go smoothly and to get the best possible outcome.
Many aspects of your divorce will be governed by the law of the state in which you file for divorce. For instance, things like child custody and support, visitation, and division of property are determined by state law, and the law can vary from state to state. As a general rule, you can file for divorce in the county and state in which either spouse legally resides. If you and your spouse legally reside in different states, you may have a choice of where your case should be decided (venue). Talk to your lawyer to see if filing in one state has an advantage over filing in another.
But if you are a military spouse, be careful. If a military pension is at issue, you may want to file in the state where the service member legally resides. The Uniformed Services Former Spouses’ Protection Act (USFSPA) provides for a military pension to be divided in divorce proceedings in the state of the servicemember’s legal residence. Otherwise, the servicemember must consent to the division of the military pension in another state’s court. If you are a servicemember whose spouse has filed for divorce, be careful that you don’t inadvertently provide this consent; talk to a divorce lawyer familiar with military divorce before filing an answer (or anything) in divorce court.
If you are a military spouse, many of your rights in divorce may depend on the length of your marriage, the length of your spouse’s military service, or both. If you are close to a crucial deadline, you may want to delay your divorce a little longer.
What kind of deadlines? One important one involves eligibility for TRICARE and military medical treatment, for which an ex-spouse is eligible under certain circumstances. If the service member has served in the military for at least 20 years, the marriage has lasted for at least 20 years, and the marriage overlapped with the service for 20 years, the non-military ex-spouse is eligible for coverage at no added cost to the servicemember.
Another important deadline involves Defense Finance and Accounting Service (DFAS) direct pay. This is often known as the 10 year rule. If the servicemember’s marriage overlapped with his or her military service for at least 10 years, DFAS will directly pay the former spouse his or her share of the servicemember’s military pension by garnishment. Importantly, DFAS will also withhold the appropriate amount of taxes from the direct payment. But if the 10 year rule is not met, the ex-spouse must try to get payments directly from the retired servicemember, and figure out the tax issue him- or herself.
It may not be worth suffering for years to get the advantage of meeting these deadlines, but if you’re only six months or so away from meeting one of them, you may want to sit tight.
The Survivor Benefit Plan, or SBP, can be a great benefit to a military spouse, but many servicemembers and their spouses have a poor understanding of the SBP. The SBP is a survivor annuity that grants a non-military spouse 55% of the selected base amount of the servicemember’s pension for the rest of the spouse’s life if the spouse survives the servicemember. In a divorce, the SBP is often awarded to the non-military spouse, particularly in a longer-term marriage. If an ex-spouse does not have the SBP, he or she stops receiving military pension payments when the retired servicemember does. Obviously, the SBP is a significant benefit.
If a non-military spouse is granted SBP coverage, the order must specifically indicate that it is “former spouse coverage.” There are also critical deadlines which must be met for submitting the order to DFAS. If an order is not properly written and timely submitted, a former spouse could be denied coverage he or she was counting on.
One more critical timing issue relating to the SBP: if a former spouse who has been granted SBP remarries before age 55, he or she loses the benefit, though it may be restored if he or she is later divorced, widowed, or gets an annulment of the subsequent marriage.
If you are a military servicemenber, you may have to give your spouse a portion of your military pension in the divorce. You may also have heard that marital property is usually divided roughly 50-50 in most states. However, these facts together do NOT mean that you must give your spouse 50% of your pension! Your spouse may be entitled to roughly half of the pension that was earned during your marriage. In other words, if you’ve been in the military for twenty years at the time of your divorce, and you married your spouse ten years in, he or she may be entitled to half of the pension earned during your ten-year marriage; NOT half of the entire pension amount.
Getting divorced without an attorney, especially if your spouse has one, is a mistake. But it’s just as big of a mistake to work with an attorney who is not familiar with the intricacies and complexities of military divorce. As long as you are investing money in your representation, make sure you have a lawyer who understands what’s at stake and can protect your interests.
If you want to work with an experienced South Carolina military divorce attorney, we invite you to contact our law office to schedule a consultation.