Deciding to divorce may be one of the most challenging decisions a person will ever face, even if it is the only viable option for a couple experiencing irreconcilable differences. Adding military benefits and pensions to an already complex divorce process may make it more challenging to navigate. Federal law establishes certain benefits that are not subject to state action.
Which State Should You Divorce in?
Divorces can be filed in the state where one of the parties legally resides. Therefore, most divorces are filed in the state where one of the parties has lived for six months. Before filing for divorce, learn how that state divides military benefits. The “Uniformed Services Ex-spouses’ Protection Act” governs military pensions in the US (USFSPA).
In a divorce, the military member’s legal resident state has sole authority to share the pension. This means that if the military member’s legal home is not the same as the divorce petition, the divorce may be impossible. Keep in mind that the service member may still agree. Also, certain states have additional rules that may affect a military pension. By seeking legal advice, you may avoid many pitfalls and traps.
Getting Assistance from Military Legal Aid Agencies
Specific federal regulations and military limitations may apply to your divorce, depending on the state in which you file. Complimentary services provided by your installation’s legal assistance department include assistance with legal issues ranging from divorce and child custody to income taxes and the Servicemembers Civil Relief Act.
There is a legal assistance attorney for each military branch in most military facilities. While these attorneys are unlikely to assist you in your divorce, they may still be valuable. Additionally, they may assist you by drafting letters, examining and modifying your legal documents, negotiating, or even responding to inquiries from your private attorney.
A military legal aid attorney may help the spouse of a service member on any military base or branch. A Marine Corps legal aid lawyer can assist a soldier’s wife, while the Coast Guard legal aid office can help a sailor’s spouse. Generally, employing a civilian attorney is the best course of action.
Rights of Service Members
Service members have certain legal rights while on active duty. In most divorce cases, the spouse served with divorce papers must respond within a specific time frame. The Servicemembers Civil Relief Act (SCRA) allows for extensions if a service member is unable to attend proceedings due to duty obligations or if a civil court or administrative proceeding is delayed.
Defendants who refuse to answer or appear at trial have certain rights. Military divorce lawyers may be able to help you understand the repercussions of your divorce. An army lawyer may advise you and your spouse to hire a non-government civilian attorney for family law matters.
A military member and their dependent spouse will need separate legal representation throughout a divorce. Military legal assistance agencies can help you with this case. Certain ex-spouses of military spouses may be eligible for certain benefits under the Uniformed Services Ex-Spouse Protection Act. Unmarried former spouses may be entitled to medical, commissary, exchange, and other surprising benefits via the Morale, Welfare, and Recreation program.
A lifelong retirement pension is available to military retirees with at least 20 years of active-duty service. Since the USFSPA was enacted in 1982, military pensions have been considered marital property. Only those who have been married to the service member for at least ten years are entitled to half of the service member’s pension.
Ex-Spouse Pension Entitlement
In the case of divorce, a spouse’s pension is determined by the length of time the couple was married during the service member’s active-duty period. The amount of a divorced spouse’s military benefits is reliant on the couple’s circumstances and how their assets are allocated.
A military spouse who served throughout their marriage is entitled to receive a share of their spouse’s pension. Even though the marriage was brief, a spouse may qualify for a portion of a service member’s pension depending on the duration of their connection.
For eligibility for military retirement benefits, a former spouse must have been married for at least 10 years and have performed at least ten years of creditable military service. The military pay center must send the payments to the ex-spouse. If the marriage overlapped service by less than ten years, the spouse is still entitled to a part of their ex’s pension. However, they would receive payments directly from the retired service member rather than via the military pay center.
Health Insurance and Commissary Privileges
When it comes to awarding health insurance commissary benefits to military personnel and their families, a strict 20/20/20 formula is used. This is not even a matter for the court to decide.
Following a divorce, a former spouse may be eligible for a variety of military benefits, including medical care and full commissary benefits, provided the marriage lasted twenty years, the military spouse served twenty years, and there are twenty years of service overlap. Even if the 20/20/20 criterion is not met, the former spouse may still be eligible for at least one year of medical privileges.
Child Custody Considerations
Many service members worry that their parental rights would be compromised due to their military service if they divorce. Military service personnel have the same rights as any other parent regarding custody and decision-making authority. Even though military members are vulnerable to deployments and transfers, they are not automatically denied custody in the case of a divorce. You should see an attorney to ensure that you protect your parental rights during the divorce process.
Trapp Law, LLC understands the sensitivity of military divorces and will do all possible to maintain good relations between you and your ex-spouse in the future. Angela Trapp has aided several individuals with military divorces. We serve consumers across the state, including Indianapolis, Greenfield, Carmel, and the surrounding regions. We provide a no-obligation consultation to learn more about the military divorce process and how to protect your rights effectively.