Divorce is a difficult decision and a painful time for any family. You will have to consider the responsibilities of each person and the consequences of ending your marriage, which is especially complicated when you or your partner are members of the military.
Filing: Which State?
Filing for divorce can be complex in the military. It is possible to file in the state where you are stationed, the state where you are a legal resident, or the state where your spouse is a legal resident. For example, Marine Kevin Muller is stationed in Twentynine Palms, California. Kevin’s “legal residence” is in New York. He has been separated from his wife, Daisy, for a year. Daisy has been living with her parents in Jacksonville, Florida.
Either Kevin or Daisy can file for divorce in California, New York, or Florida. It is a good idea to consider the divorce laws of each state, because they all have advantages and disadvantages. Also, keep in mind that if you file out of your state, you will be required to travel for court appearances, etc.
Each state has different laws regarding how family law cases are to be handled and community property divided, but the federal government has enacted legislation titled The Uniformed Services Former Spouses Protection Act (USFSPA) which governs the calculation and division of military pension benefits. The USFSPA does not contain a formula for calculating the appropriate division of retired pay, that is determined by state laws. Up to 50% of the service member’s retired pay can be awarded. However, understand that just because you are married member, this does not mean that you will definitely get a portion of his or her retirement. The USFSPA does not mandate the splitting of retirement pay.
If you are awarded a portion of the service member’s retired pay, the courts will treat it like property or benefits in a civilian divorce. Additionally, your divorce decree must read that you were given a portion of the retirement, and it must be written as a percentage.
Military Benefits of a Former Spouse
Under the USFSPA a former military spouse is eligible for full medical, exchange, and commissary privileges when the following factors apply:
- The marriage lasted at least 20 years.
- The military member performed at least 20 years of service creditable for retired pay.
- There was at least a 20 year overlap of the marriage and the military services.
This is also referred to as 20/20/20. If the spouse remarries, eligibility for benefits ends. If the subsequent marriage ends in divorce, the benefits are reinstated.
In cases where the service member served 20 years of creditable service, the marriage lasted 20 years, but the period of the marriage overlapped the period of service by only 15 years (20/20/15), the former spouse is entitled to full military medical benefits for only one year following the divorce.
Besides pension division and filing decisions, there are many family law issues that come into play with military divorces, including:
- Alimony (Spousal support)
- Child custody and visitation
- Child support
- Wage Garnishment
- Property division
Due to the complex and unique nature of military divorces, it is highly recommended that you consult with an attorney who specializes in military divorce.