MILITARY DIVORCE GUIDE
Legally, military persons going through a divorce are not different than others so the procedure is the same. However, being in the military, or being a military spouse presents some additional hurdles than can affect your divorce and make your divorce more complicated. You may need an attorney to assist you. Stanford Law Firm, LLC. can help.
Residency may present some complications in a military divorce. In Florida either spouse may file for divorce in Florida if they have resided in Florida for the previous 6 months. This means the spouse merely needs to have lived in Florida for the past 6 months. A person may reside in more than one place. Residency has a different meaning than domicile. Legally a person can only have one domicile.
Military retirement pay. The USFSPA-the Uniformed Services Former Spouses' Protection Act provides a Federal Statute for the military, guiding them to accept state statutes on addressing child support, spousal support, and military pay/pension. States have always had the authority to treat retirement and pension plans like any other marital asset, the USFSPA permits the states to classify military retired pay as property rather than income.
Military Retirement Pay/Pension-Direct Pay
Military personnel and their spouses are familiar with DFAS-the Defense Finance and Accounting Service. DFAS plays a major role in the military divorces. If an ex-spouse was married to a military member at least 10 years of 10 years of overlapping military service then DFAS can make direct retirement payments to that ex-spouse. This does not mean a spouse must be married 10 years of 10 years overlapping military service to receive retirement pay. A spouse may negotiate or be awarded retirement even if he/she was married for just a year. An ex-spouse may not be entitled to more than 50% of retirement pay as retirement/individual support income. If the amount taken from the pension or retirement includes child support then it may not be more than 65% of the disposable retirement pay.
Orders and DFAS
Retired Member already receiving retirement payment-It takes about 90 days for direct payment to take effect after order filed with DFAS.
Active Military Members-It takes about 90 days after the newly retired member becomes entitled to receive their first payment to receive direct payment from DFAS as long as the order was filed with DFAS at the time of divorce.
TSP-Thrift Savings Plan
TSP-Thrift Savings Plan is treated the same as a 401(k).
SBP-Survivor Benefits Plan
This is an important and complicated area. Spouses who have this insurance during marriage do not automatically have SBP upon divorce. Without an SBP plan, all of the former military member's retirement pay will stop at the death of the retiree.
Base privileges such as commissary, exchange, and theater privileges depend on what is known as the "20/20/20 rule":
- You were married to your former spouse for at least 20 years
- Your ex-spouse was in the military for at least 20 years, and
- Your marriage overlapped the time in service by at least 20 years
If all three of these apply you are entitled to full base privileges as long as you don't remarry
It is possible for the Court to award primary custody to the parent who is not on active duty and not deployed, merely because that parent is more available to the child and has a more stable home environment. Often both parents would rather have this situation because the deployed/active-duty parent understands he/she is just not able to care for the child as he/she would like. If you are active duty and you do not believe this is the case, then you will need an attorney to fight for you