The Divorce Process May Take Longer for Military Families
When one spouse is serving in the military, the already difficult process of divorce becomes even more complex and timely. There are special provisions of state and federal law that apply to divorce involving an active duty service member. In addition, there are a number of issues related to the division of assets and benefits that are unique to the military, including retirement pay, medical care, and the use of military exchanges and commissaries.
If you are a service member contemplating divorce or legal separation, you will need a military divorce attorney who understands these complicated aspects of military divorce. A skilled lawyer will be able to evaluate your specific situation, advise you on your options, and use their knowledge and expertise to help resolve your divorce case in the most favorable way possible.
Based in Carlsbad, the Law Office of Steven L. Fritsch represents clients throughout San Diego County on divorce and family law matters. Our law firm is dedicated to providing the highest level of service to active duty military members and veterans of the Army, Air Force, Navy, Marine Corps, Coast Guard, and National Guard.
Laws Affecting Military Divorces
When it comes to family law issues, including divorce, separation and child custody, there are a number of laws that affect members of the military and military spouses. While state law governs divorce and procedures, a number of federal laws and military regulations may apply to your situation.
This includes the Servicemembers’ Civil Relief Act (SCRA), which allows a military member to request the temporary suspension of legal divorce proceedings and transactions for as long as they are fulfilling their terms of service. Under the SCRA, a service member may also be protected from an entry of default judgment for failure to respond to a lawsuit or to appear at trial.
The division of military pensions is also governed by federal law. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), a state divorce court may treat military retirement pay as community property, subject to division in a divorce. This law can make the choice of where to file for divorce particularly important.
Where to File for Military Divorce
One of first issues that often arises in a divorce involving a military member is where the case should be filed. Because a service member may be stationed throughout the United States and the world, the question of where to file arises more frequently than with nonmilitary divorces. As a general rule, a divorce may be filed where the service member is stationed or in a state where they are a resident.
Under the USFSPA, the state of legal residence of the military member always has the power to divide the military pension in a divorce. Filing for divorce elsewhere may mean that the court does not have the authority to divide the pension, unless the military member consents. For this reason, it is important to carefully consider the advantages and disadvantages of filing for divorce in a particular state with the help of a skilled military divorce lawyer.
Military Divorce Entitlements
One of the most challenging aspects of any military divorce is determining how various military entitlements will be handled by the court, including the military member’s pension, Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS). These allowances are treated differently by the court system than the service member’s pay, which can be understood by referring to the paystub or Leave and Earnings Statement (LES).
In order to effectively represent a service member or military spouse in a divorce case, an attorney must have an in-depth understanding of how military members are paid, and what entitlements they may have pursuant to their service. The division of these assets can also impact taxes, depending on the state laws of the state where the military member pays taxes. Tax issues can affect the amount of child support or spousal support ordered by the court, so it is vital to take them into consideration during the divorce process.
Military Pensions After Divorce
Military members may also receive a pension when they are eligible. A military pension is a defined benefit pension, so that a member who serves at least 20 years will receive a monthly payment based on their years of service, basic pay, and a retirement multiplier. Depending on a service member’s specific situation, the value of these retirement benefits may be anywhere from hundreds of thousands of dollars to over a million dollars, which may make it the most valuable asset that the spouses have accumulated during their marriage.
Importantly, there is no federal law that automatically entitles a former spouse to a portion of a military member’s retirement pay. A former spouse only receives part of the pension if a court awards it. If the spouses have been married for at least 10 years overlapping military service, then the Defense Finance and Accounting Services (DFAS) will pay the former spouse’s portion directly to them. Otherwise, the retiree will need to send the payment to their former spouse.
Basic Allowance for Housing and Subsistence After Divorce
Active duty military personnel who receive basic allowance for housing (BAH) are often surprised when child and spousal support (alimony) are calculated. These numbers are often much higher than anticipated, for two reasons.
First, when the court calculates child or spousal support, it must determine if the income is taxable or nontaxable. The court considers BAH and Basic Allowance for Subsistence (BAS) non-taxable income. As tax-free income, a military member’s total income will be higher for purposes of support calculations, leading to higher child and spousal support orders than what may be calculated based on their base pay alone.
Second, even if the BAH is taken because the family is living in base housing, the court will still calculate the amount as nontaxable income. This is always a shocker to military personnel because they never actually see the money on their LES. The fact that a service member doesn’t actually receive this housing allowance as income does not matter to the court, because they are still receiving the benefit of the housing.
However, if the parties have separated, and the nonmilitary spouse is living in base housing, this allowance will still be charged to the military spouse – but can then be deducted from the support order. A skilled military divorce lawyer will take these factors into consideration when advising a service member or military spouse of their rights and options in a divorce.
Other Factors at Issue in Military Divorces
Beyond retirement and allowances, there are other aspects of military divorces that are unique. This includes disability payments from the Veterans Administration (VA), military medical benefits, and GI Bill benefits.
Disability Benefits After Divorce
If a military member has a service-connected disability that entitles them to VA benefits, these benefits are not considered an asset subject to division. Even if a vet had to give up a portion of their retirement to obtain disability benefits, their ex is not entitled to any part of their disability benefits. However, in many states, disability benefits are considered as income for purposes of calculating child support and alimony payments.
Military Medical Benefits After Divorce
One of the most important benefits for members of the military and their families is health insurance. Service members have Tricare health. This benefit is not considered an asset in a divorce, and cannot be awarded by a state court. However, a former spouse who meets the federal statutory requirements has the right to receive Tricare – regardless of what a state court may order.
If the spouses were married for at least 20 years, the military member served for at least 20 years, and there were at least 20 years of overlap, the former spouse is considered a 20/20/20 spouse. As long as they remain unmarried, the former spouse is entitled to receive Tricare, just as if they were still married to the service member.
If the spouses were married for at least 20 years, with 20 years of service and 15 years of overlap, then the 20/20/15 rule applies. THis means that the former spouse is entitled to 1 year of transitional medical benefits only.
If a former spouse doesn’t fall into either of these two categories, then they can take advantage of the Continued Health Care Benefit Program (CHCBP), which is the Tricare version of COBRA benefits, for 3 years. As long as the spouse does not remarry and was not awarded a share of their spouse’s retirement or survivor benefit plan (SBP), then they may remain on CHCBP for life. However, this program can be expensive, so it may be cheaper for the former spouse to obtain benefits in another way.
GI Bill Benefits After Divorce
GI Bill benefits can be incredibly valuable, with the military picking up the cost of tuition plus offering a housing allowance and a book stipend. This benefit is not exclusive to the service member, but can be transferred to their spouse or children if eligibility requirements are met. A divorce does not terminate an individual’s status as a beneficiary of GI Bill benefits, as long as the military member agrees.
However, GI Bill benefits are not a divisible asset in a divorce. In other words, a military member can agree to allow their former spouse to continue to use these benefits, but a court cannot order them to do so. The value of the monthly housing allowance associated with the benefits is considered income for the spouse who receives them.
Do You Need a Military Divorce Lawyer in San Diego County?
As described above, military divorces involve much different issues than civilian divorces. While state courts oversee these cases, there are specific issues that are unique to divorce and legal separation where one or both spouses are service members. That is why it is critical to retain a law firm that has experience and knowledge in handling military divorces.
At the Law Offices of Steven L. Fritsch, we understand the complexities of military divorce. As a family law attorney in San Diego County, Steven Fritsch has represented numerous service members and spouses of service members in divorce and other family law matters. We understand the sacrifice that service members and their families make, which is why we offer a reduced hourly rate for active duty service members or their spouses. If you are a service member or military spouse, please call us at 760-683-2071 or fill out our online contact form to schedule a free consultation.