Military Divorce Attorneys in Charleston, SC
Divorce is governed by state law, even when one or both of the spouses serves in the U.S. military. However, there are many federal laws that can affect the divorce process and the rights of servicemembers and their spouses in divorce. For that reason, it is essential to work with a divorce attorney who not only understands state divorce law, but who has experience representing those in the military and military spouses at this challenging time. At Brinkley Law Firm, LLC, our South Carolina military divorce attorneys guide clients through the divorce process with respect and sensitivity while explaining the unique legal issues that are likely to affect them, including:
State Court Jurisdiction in Divorce and Family Law Matters
A family law case such as a divorce must be filed in a state that has jurisdiction over at least one of the parties. Typically, that means where one of the parties resides. But the issue of residence gets more complicated when one or both spouses is in the military; the location in which a servicemember is stationed may be far from the state they consider their home.
A divorce may be filed in the state in which a servicemember claims legal residency; the state in which the servicemember is stationed; or the state in which the filing spouse resides. If one of the spouses lives in a state other than South Carolina, a spouse who lives in South Carolina must have lived in the state for at least one year before filing.
Military families often have a choice of more than one state in which to file for divorce. Since the laws of the state in which the divorce is filed govern issues like child custody and support and property division, choosing where to file can be a strategic decision. Our Charleston military divorce attorneys can help you evaluate your options and help you file for divorce in South Carolina.
The Servicemembers’ Civil Relief Act
Those in the military are serving their country; it would be unjust if a legal case (including divorce) against them could negatively affect their rights while they are away on active duty. Accordingly, the Servicemembers’ Civil Relief Act (SCRA) can postpone family court and other proceedings until the servicemember has the opportunity to appear and participate in the proceedings. This may result in the divorce process taking longer that it would for a civilian divorce.
Universal Child Custody and Jurisdiction Act (UCCJEA)
The Universal Child Custody and Jurisdiction Act governs the right of state courts to make determinations regarding child custody and visitation. Generally, the UCCJEA provides that a state in which the child has lived for the last six months (or since birth, if the child is less than six months old) has jurisdiction over child custody matters.
Military Child Support
Child support and alimony are calculated based on factors that include the parties’ income. If one or both spouses are in the military, the issue of what is included in “income” can be complicated. Income for child support purposes may include the servicemember’s base pay; basic allowance for subsistence (BAS); basic allowance for housing (BAH); in-kind compensation; and certain special and incentive pay.
The servicemember’s Leave and Earnings Statement (LES), rather than income tax returns, should be used for child support calculations because some income that is not taxable should be included in those calculations.
Alimony for Military Spouses
Like spouses of civilians, spouses of military service members may be entitled to alimony, also known as spousal support. While state law generally determines eligibility for spousal support, the federal Uniformed Services Former Spouses’ Protection Act (USFSPA) also comes into play. The USFSPA directs the military to accept the state divorce law’s treatment of alimony and other issues, and may permit a state to classify military retired pay as property, rather than income.
Division of Military Pensions and Benefits
Spouses are often confused about division of military pensions, with many people mistakenly believing that they must have been married for at least ten years of their spouse’s military service to qualify for a share of their spouse’s pension. In fact, even a spouse who was briefly married to a servicemember may qualify for a share of their spouse’s pension. However, in order to receive payment directly from Defense Finance Accounting Service (DFAS), a spouse must have been married to their spouse for at least ten years that overlap with at least ten years of military service.
These are only a few of the many issues that face military families in divorce. If you are in the military and facing a divorce, or you are the spouse of a servicemember, you need an experienced military divorce attorney to protect your rights.
Attorney Christopher D. Kays understands the complexity of military divorce and the interplay of state and federal law. To learn more about your rights and options in divorce, contact Brinkley Law Firm, LLC to schedule an appointment with our military divorce attorneys today.