The latest stats reveal that among American adults ever married, about one-third of both men and women experienced a divorce. There are many reasons people file for divorce. For military spouses, the added pressures that come with active military duty are sometimes too much to handle.
Whatever the reason for divorce, military divorces have some extra complicating issues. If you’re not aware of all your rights, you could end up losing important benefits.
Learn about your rights and benefits from this helpful legal guide.
1. If Possible, Attempt to File Where the Military Spouse Has a Legal Residence
Civilians file for a divorce where they currently live. It’s not always that simple for a military family.
One of the most important things to keep in mind is the division of the military spouse’s pension. The military spouse’s pension is marital or community property in all 50 states. Not every state divides marital property the same way.
The state where the military member has legal residence has the power to divide the military pension in the case of divorce. Are you filing for divorce in a state where the military spouse doesn’t have a legal residence? That state’s court may not have the necessary authority to divide the pension.
That doesn’t mean you can’t file for divorce in another state. The military member can consent to any state court’s division of property but it may be easier to file where the military member has a legal residence.
These are complex topics and it’s wise to consult an attorney to avoid problems down the road.
The takeaway? It’s best to file for divorce where the military spouse has a legal residence if possible.
2. Get Your Own Lawyer
There are legal assistance attorneys for every branch of the military. Most of these attorneys can’t represent you in your divorce. These lawyers can offer you some assistance.
What can they do?
- Answer pertinent military questions, including your private lawyer’s questions
- Negotiate on your behalf
- Review legal documents
- Write letters
A military member’s spouse can also get help from military assistance attorneys. One of the best courses of action is to get your own lawyer and seek help from military attorneys for military-specific advice.
If you have financial issues employing your own lawyer, look for help from a non-military legal aid organization.
3. Do Seek Child Support From a Military Spouse
The military requires that service members provide child support for their children. Except for the Air Force, each branch has rules about the amount of support the parent should pay. You can enlist your spouse’s commanding officer if you need help getting child support before the court determines an amount.
In general, state law determines child support in a divorce. The number comes from a standard formula.
It’s important for the court to include the military spouse’s total entitlements. These include basic allowances for housing, subsistence, and other entitlements or special pay to the service member.
This is where a military legal assistance attorney can help. Contact a military attorney for information about child support rules. It’s also crucial the court understands how a military member’s pay may change depending on deployments, transfers, and other factors.
Once the court decides on the amount of child support, you can often get direct payments from your spouse’s paycheck sent from the military pay center. You’ll need a special order that meets the specific requirements of the Defense Finance and Accounting Service.
4. Understand Splitting a Military Pension
Splitting a military pension is another area that sometimes causes confusion. Make sure your lawyer contacts military legal assistance to ensure he understands all the rules when it comes to the pension.
Many people mistakenly think the marriage must be 10 years or longer for the non-military spouse to get some of the pension. This isn’t the case.
The court has a duty to divide all community property in a fair and equitable manner. That may include some of the pension even in a shorter-term marriage.
There is a rule that triggers pension garnishment. It’s the “10-10” rule. Were you married for 10 years while the military spouse was on active duty or doing credible service in the Reserves or Guard? Then you’ll get your part of the pension check straight from the military’s retirement pay center.
If you weren’t married for 10 years but the court awards you some pension, you’ll receive the payment from your ex-spouse.
Are you close to being married for 10 years with your military spouse on active duty for those 10 years? Consider waiting to file or slowing down the process until you meet the rule. It’ll make getting your part of the pension easier.
There are other considerations when splitting a military pension such as cost-of-living adjustments. There is also gross retired pay versus disposable retired pay. Make sure your lawyer knows that dividing the gross retired pay may work out better for the non-military ex-spouse.
5. Understanding Health Coverage After Military Divorces
The non-military spouse does have healthcare options after the divorce.
Were you married for at least 20 years? Did the military spouse serve active duty the entire time? If so, the non-military spouse has the option to take TRICARE coverage at no cost.
If you’re close to 20 years, consider delaying the divorce until you’ve hit the 20-year mark. If you’re a non-military spouse and you later remarry, you will lose the TRICARE coverage.
If you’re not eligible for TRICARE, there is a Continued Health Care Benefit Program. Ask the legal assistance attorney for the military about your options.
Legal Benefits for Military Divorces
If you or your spouse are in the military, it’s crucial to understand that military divorces aren’t the same as regular divorces. Make sure you get a lawyer that understands the differences.
No divorce is easy, but a compassionate, experienced divorce lawyer can get you through the process.
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