With Memorial Day here, what better time than now to take a look at how those either in the military, or those who have retired from the military, are impacted by divorce.
The good news is that according to statistics released earlier this year by the Defense Department, the military divorce rate has actually been declining and in 2014 reached its lowest point (3.1 percent) since 2005.
Still, it does happen and unlike civilian divorce, military divorce is a bit more complicated and there are different rules in place that dictate how to calculate alimony and child support.
For example, those in the military have more of a choice as to where they can file for divorce. They can file (a) where the military spouse is domiciled (b) where the military spouse is a resident or (c) in a state that you and your spouse agree to. Wherever you file, the laws of that state will govern your divorce.
If a spouse is on active duty, the Soldiers and Sailors Civil Relief Act allows for the postponement of a divorce proceeding during that time and for 60 days after they return from active d uty. However, a military member can choose to waive this right.
In Florida, child support and alimony awards can’t be more than 60 percent of a military member’s pay and allowances. The usual Florida child support guidelines , worksheets and schedules are used to determine how much child support is to be paid.
Setting up shared parenting plans can be more complicated when one or both members of the divorcing couple are in the military. While all divorcing parents should have a parenting plan, which describes who will care for the child and how, the military has rules for cases in which the child’s sole caretaker or both caretakers may be deployed. In such cases, a Family Care Plan may be required detailing who will take care of the child, who will be responsible for supporting the child, and who will take custody of the child in the event of a service member’s death, among other things.
The Uniform Services Former Spouse’s Protection Act (USFSPA) governs how military retirement benefits (i.e. pension) are calculated and divided between spouses upon divorce. However, The USFSPA does not automatically entitle a former spouse to a portion of the member’s retired pay.
For orders dividing retired pay as property to be enforced under the USFSPA, a member and former spouse must have been married to each other for 10 years or more during which the member performed at least 10 years of military service creditable towards retirement eligibility (the 10/10 rule).
It recognizes the right of state courts to distribute military retired pay to a spouse or ex-spouse and provides a way to enforce these orders through the Department of Defense. This law requires that the non-military spouse have been married to a service member on active military duty for ten or more years.
According to the Defense Finance and Accounting Service, there is no federal law that automatically entitles a former spouse to a portion of a member’s military retired pay. A former spouse must have been awarded a portion of a member’s military retired pay in a state court order.
When it comes to dividing a military pension, the civilian spouse can either wait to receive a share of the benefits when the service member retires, or accept a lump sum buyout either for cash or in trade for other marital assets at the time the divorce is finalized.
As you can see there are some differences when it comes to military and civilian divorce. As in any divorce, it’s always best to consult with legal counsel to ensure that your rights are protected.
Lori Barkus is a Florida Supreme Court Certified Circuit Civil and Family Law mediator and guardian ad litem. She handles matters relating to divorce, custody, child support, paternity, collaborative divorce, adoption, parental rights, and family law and civil mediation.
Ms. Barkus is a cum laude graduate of the University of Miami School of Law. She is admitted to practice in Florida, Georgia and the District of Columbia, as well as in the Southern and Middle Districts of Florida and the Eleventh Judicial Circuit Court of Appeals. She is also a member of Leading Women for Shared Parenting.
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