If you are a member of our military or a spouse of someone serving in our military, there are additional issues that arise during a divorce or legal separation proceeding that are specific to the military. You will need a military divorce attorney that understands these issues and has the knowledge and expertise to advise you and effectively represent you regarding these military issues and ensure that these issues are dealt with appropriately.
Where to File for Military Divorce
One of the first issues that arise in a military divorce is where it should be filed. Because a service member is stationed throughout the United States and the world the issue of where to file arises more frequently than with nonmilitary divorces. A divorce may be filed where the service member is stationed or the state that he or she is a resident of. The Law Office of Steven L. Fritsch can assist you in determining where to file.
The income of a service member is an area that requires knowledge specific to the military. An understanding of the service member’s paystub or Leave and Earnings Statement (LES) is necessary. A service member’s Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) are treated differently than his or her Basic Pay. There are also tax issues that arise depending on the state that the service member files taxes in. These issues will affect the amount of child support or spousal support that may be ordered by the court.
A service member may receive a pension when they are eligible. His or her spouse may have an interest in the pension and the divorce judgment will have to address this issue. The Law Office of Steven L. Fritsch will help and guide you regarding the pension and how or whether it will be divided.
Lastly, a service member is entitled to certain rights that non-service members do not get. Many of these rights fall under the Servicemembers Civil Relief Act and the exercise of these rights may affect the divorce immensely.
Basic Allowance for Housing After Divorce
Active duty military personnel who are receiving basic allowance for housing (BAH) are in for a rude awakening when child support and/or spousal support is calculated and are surprised as to how high the support can be. The reason is twofold.
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. Because this is “tax-free” income, the income will be higher for support calculations which generally means higher child and spousal support.
Second, even if the BAH is put in and taken out because the family is living in base housing, the court will still calculate the amount as nontaxable income. This is always a shocker to the military personnel because the money is put into the Leave and Earnings Statement (LES) but is taken right out and the common response is “I never see the money”. The court does not care and still includes it as nontaxable income. The reason is because although the money is being taken out, the person is still receiving the benefit of the housing and is therefore charged that amount. If the parties have separated and the military personnel’s spouse is living in base housing, the military person is still charged with the income but the amount can be deducted from whatever support is ordered.
In sum, military personnel should be aware of the income issues associated with BAH and BAS and should be prepared for support that can be ordered as a result of receiving BAH and BAS.
Child Custody When Both Parents Are in the Military
When two divorcing parents are simultaneously undergoing military service, there can be some child custody concerns that are crucial to address when creating a custody plan. The custody rules for military parents are complicated because both parents may potentially be facing deployment and moves to other states, but there is one consistent factor that is always taken into serious consideration: the legal decisions the parents make need to benefit the children.
There are countless situations in which one parent in a divorced military couple may have custody of a child, but then has to move to an overseas military base or is deployed elsewhere from where the child has grown up and the other parent resides. What happens to the child in these situations is just a microcosm to the situations that many military families face.
Of course, when both parents are in the military there are chances that both parents will be simultaneously deployed. This is partly why it’s so crucial for military parents to make a family care plan through the help of an experienced military divorce attorney like Mr. Fritsch.
Here are five crucial aspects to military parenting plans that every military family needs to take into consideration when it comes to child custody because, when it comes down to it, the proper precautions need to be made so one military parent isn’t unfairly treated or left out of a child’s life simply because they are fighting for our country.
Legal and Physical Child Custody During Deployment
Every military parenting plan needs to clearly explain where a child will live and how certain childcare decisions will be made by both parents during one or both parents’ mobilization, deployment, unaccompanied tour, temporary duty, etc.
Many divorcing military parents will want to have joint legal custody with their ex-spouse, but no matter what if both parents are in the military then their parenting plan must state where the children will live and who will take care of them when both parents are on assignment or deployed.
If a military parent fails to place this type of information within their custody plans then there could very easily be potential grounds for violating the agreement and other child relocation laws within certain circumstances.
Visitation During Deployment
Each custody or military parenting plan must also clearly explain visitation schedules when one or both parents are on assignment or deployed. This may mean that you’ll have to include certain provisions that allow parents to visit their children during leave, and this can also include telephone and internet communication with children and a deployed parent.
Substitute visitation is also something that needs to be properly established within this part of a military parenting plan, and what this means is that another person like a grandparent or family member will be able to visit the children during times when a deployed military parent would have normally been allowed to do so.
What to Do After Deployment
There are many reasons why it’s important to create a provision in a custody agreement that states that no legal changes can be made while a military parent is deployed. Of course, this also allows for the creation of new schedules and plans once the deployment is over, or if the military parent is present for a phone call or web chat to discuss the changes while away.
There are many different situations that can take place within this part of military divorce, but it’s crucial to understand that military members have the Servicemember’s Civil Relief Act (SCRA) as part of their legal protection. The SCRA helps to protect the legal rights of military members when they are on active duty, which gives military members the right to postpone certain hearings and administrative proceedings if their military service impedes their own ability to participate within the case.
Every military divorce settlement in which both parents are undergoing active duty must include information about what to do in terms of parenting time scheduling if one of the parents must relocate. It is sometimes best to create several different parenting schedules that simply prepare for all different types of custody uncertainties and making a new schedule in this type of situation is almost always necessary.
There are instances in which one military parent who has custody of a child may have to give custody to the other parent when their time to relocate comes up. This is one of the reasons why it’s so crucial to create a clearly stated provision in your custody agreement about what happens in relocating situations.
Family Care Plans
Both military parents must be updating their Family Care Plan on a regular basis when certain life changes arise. A Family Care Plan is a general collection of documents that describes care information for children when military members are deployed, and it’s important to make sure that your Family Care Plan has the same information as your military parenting plan so there are no potential mishaps.
Steven L. Fritsch, Esq. has the knowledge and experience regarding the many legal issues that arise in a military divorce. As a family law attorney in San Diego County, he has represented numerous service members and spouses of service members in divorce and other family law matters. The Law Office of Steven L. Fritsch understands the sacrifice that service members and their families make. As such, Steven L. Fritsch offers a reduced hourly rate for active duty service members or their spouses. If you are a service member or spouse, please contact us today for your free consultation.