Whether civilian or military, divorce is a complicated process. The military divorces are governed by additional military regulations which add to the already existing mental and emotional stress of individuals. The case of divorce gets way more complex than it normally is, as unique issues emerge at every stage of the process. As a military serviceman or a military spouse, a lot has to be understood before a divorce is filed because a lot of legal issues surround military divorces!
THE ROLE OF MILITARY IN DIVORCE
When it comes to military divorce, expecting a lot from the military is not a wise approach. The military servicemen and the family can take help from the Legal assistance attorneys which provide consultation services without any charges. What you need to understand is that this service is merely a guidance service that can be used to prevent potential conflict of interest. The role of this body in a divorce includes;
- Recommendation of a civilian divorce lawyer who has experience in military divorce to both the serviceman and the spouse.
- Reviewing legal document and revising them if needed.
- Negotiate on behalf of the military serviceman or military spouse.
- Provide details to the private lawyer about the case.
These Legal assistance attorneys cannot represent the individuals in court and can merely help smooth out the process of divorce by providing the required guidance to the divorcing military couple.
FILING A DIVORCE: WHERE AND HOW?
The location of divorce filing is an issue that needs a significant amount of attention. According to onlinedivorce, there are three options of where and how the military members/military spouse can file for divorce which includes;
- The state of the station where the military member is deployed.
- The state where the legal residence of the military member is located.
- The state where the divorce filing resides.
The military couple can decide the state where they want to file divorce after understanding how each of these states handles the matter regarding divorces such as child custody, pension division, child support, alimony, and property division.
HANDLING MILITARY BENEFITS
The three things that matter the most in a divorce are child custody/support, spousal support, and pension/military benefit. Here is how these matters are handled:
During the process of divorce, the case of pension becomes complicated, as to how shall it be divided between the couple. It is thus, one of the most intricate matters in military divorce and is dealt according to the Uniformed Services Former Spouses’ Protection Act – USFSPA. It is commonly believed that if a military couple had not been married for 10 or more years, the military spouse will not be given a portion of the pension, which is not true. Even if the couple is married for one day, the military spouse is prone to receive a portion from the pension.
Understanding the 10-10 Rule:
The matter of pension division makes use of the 10-10 rule. According to this rule, if the couple has been married for at least 10 years, during the military member was on service/duty, the military spouse will receive the cheque of the divided pension directly from the Defense Finance and Accounting Service – DFAS.
SBP or Survivor’s Benefit Plan is an insurance plan that covers the loss of military pension to the non-military spouse in case the military spouse passes away, in case of inflation or when the survivor outliving the benefits.
Factors to be Considered While Dividing the Pension:
To fairly divide the pension among the couple getting divorced, some factors play a pivotal role. These influential factors include;
- Years of service and of the marriage.
- In-service or to be retired after divorce.
- Cost of living adjustment.
Based on these factors the court under USFSPA decides whether the pension is community property or separate property. After the type of property has been decided, the pension is divided accordingly between the military and non-military spouse.
Handling Pension Division:
In the case where the 10-10 rule is not applicable and the couple had been married for less than 10 years, the court decides the percentage or amount of pension to be received by the ex-spouse which the military spouse has to pay directly every month.
If the military spouse has paid for SBP, then the non-military spouse will receive a pension even if ex-spouse, a former military member passes away.
Health Care Benefits:
Being a spouse of a military member, the non-military spouse has access to the medical or healthcare benefits. Divorcing complicates the matter of health care benefits as well. To understand how healthcare benefits will be handled, various factors have to be understood.
Understanding the 20/20/20 Rule:
The 20/20/20 rule is that the ex-spouses of military personnel are eligible for full medical if the following conditions are satisfied;
- The couple has been married for 20 or more years.
- The military spouse has completed creditable 20 years of service.
- The marriage years and the military services have overlapped for at least 20 years.
This is a health care program which provides healthcare benefits to the U.S military members and their dependents such as spouse and children. This program covers the health of the spouse until the couple stays together or the military spouse is alive.
CHCBP or the Continued Health Care Benefit Program is a healthcare plan which covers the health benefits 18-36 months when an individual is no longer eligible for TRICARE.
Handling Military Healthcare Benefits:
When the coupling being divorced satisfies all the conditions of the 20/20/0 rule, both the military and non-military spouse have TRICARE coverage. When due to divorce the non-military spouse loses TRICARE coverage, they can get temporary health coverage from the Continued Health Care Benefit Program for 18-36 months. The CHCBP can be extended further if the following conditions are met;
- The former non-military spouse has SBP coverage or a share in the military spouse’s pension.
- If the non-military spouse stays unmarried till the age of 55.
Child and Spousal Support:
When it comes to the custody of the children, the deployment of the military spouse affects the court’s decision and it may decide in favor of the non-military spouse so that the children are in constant care and are not affected due to constant deployment.
The court decides on the amount that must be paid as the child support based on the base pay, basic housing allowance, basic subsistence allowance, other pays of the military spouse and state laws. The amount decided can only be changed by the court and until the amount is decided, assistance is provided by the military if asked. The amount decided may change due to factors such as base transfers or deployments.
There are special rules that the court follows in case of alimony or child support and it enforces this upon the former military spouse through court orders, Voluntary or Involuntary Allotment or Garnishment. The court has all the rights to ask the military spouse to maintain life insurance for covering the child and non-military spouse payments for a certain period.
When a military member refuses to pay for child support or alimony, the DFAS stops paying this individual the with-dependent basic allowance. To make sure that the military ex-spouse pays for the child and spousal support, a court order must be obtained and if even then the military ex-spouse refuses to pay, the non-military ex-spouse can obtain involuntary allotment order or garnishment.
If the state law does not specify the amount in case of garnishment or involuntary allotment, the federal law has the right to provide the military member’s 50% aggregate disposable earnings (any workweek) to the ex-spouse and child if the military member is supporting a second spouse and child, and 60% if the military member is not supporting a second spouse and child.
Punishment in Case of Non-Payment:
A commander can choose to punish a military member for not paying for child support or alimony and under the Privacy Act 1974, the complainant must stay unaware that the military member is being punished.
The installation house has to be vacated within the 30 days from when the military member or the non-military spouse leaves the house due to divorce. This is because the housing is issued to military members who are living with their families. However, the military member has no right to ask their non-military spouse to vacate the house. When the stage of physical separation is reached, the commander asks/orders the military member to shift in the dormitory.
At the time of vacating the house, the military pays for the non-military spouse to return to their homes from the duty station. While the settlement is being drawn, the couple can negotiate over the cost of an in-state move.
Military ID Cards:
The Military ID card is the United States Uniformed Services Privilege and Identification Card, it is issued to a military member and the member’s dependents such as children or spouse by the United States Department of Defense. This card is to provide the military privileges of healthcare, access to military bases, Morale Welfare and Recreation facilities etc. In case of divorce, many military members think that they can confiscate the cards of their spouse and deprive them of these facilities but this is unlawful as the right of issuance or military ID cards and their confiscation is the matter to be handled by the congressional law and not the military member. If the military member takes away the card, under the Uniform Code of Military Justice’s Article 121 provisions, this military member will be charged with Larceny.
The non-military spouse will not lose the military card if all the conditions of the 20/20/20 rule are satisfied. In the case of 20/20/15 spouse, medical benefits will be provided for a year after the divorce.
RIGHTS OF MILITARY SPOUSE
According to the SCRA or the Servicemembers Civil Relief Act, the military spouse can request a stay or postponement of the court proceedings if they are on duty and leave is not allowed. This is to provide the service member the clarity of mind that is needed to defend the country. This request must be submitted in written form and can be extended if the circumstances favor.
In order for the military divorce process to run smoothly, both the military and non-military spouse must be well aware of the legal matters associated with the divorce. Both parties must know their rights during a divorce so that things can proceed fairly. To make things easier, both parties may consult the free consultation provided by the Legal Assistance Attorneys and both must look for lawyers who have sufficient knowledge as well as experience regarding military divorces.