Divorce is a challenging process, filled with emotional upheaval and legal complexities. For military spouses, the process can be even more daunting due to the unique aspects of military life and law. One of the most common questions military spouses ask is, “What am I entitled to in a divorce?” The following addresses this complex issue, providing a comprehensive guide to the rights and entitlements of a military spouse in a divorce.
Understanding Military Divorce
Before we delve into the specifics of what a military spouse is entitled to in a divorce, it’s important to understand the unique aspects of a military divorce. While the basic process is similar to a civilian divorce, there are additional factors to consider due to the military lifestyle and federal laws. These factors can significantly impact the division of assets, child custody, and spousal support in a military divorce.
Rights and Entitlements of a Military Spouse in a Divorce
- Division of Military Pensions: One of the most significant assets in a military divorce is the military pension. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), military pensions are considered marital property and can be divided between spouses in a divorce. However, the division is not automatic, and the state court will determine the exact division based on the laws and principles of equitable distribution.
The USFSPA also provides a method for direct payment of a portion of a military retiree’s pay to the former spouse if the marriage lasted at least ten years overlapping with ten years of service. This is known as the “10/10 rule.” However, even if the marriage does not meet the 10/10 rule, the former spouse may still be entitled to a portion of the military pension; it just won’t be paid directly from the Defense Finance and Accounting Service (DFAS).
- Survivor Benefit Plan (SBP): The SBP is a form of protection for the family of a retired military member. It provides ongoing income to survivors in the event of the retiree’s death. In a divorce, the military spouse can be designated as the SBP beneficiary, ensuring they continue to receive income if the service member dies. However, this must be specified in the divorce decree or settlement agreement.
- Healthcare Benefits: Healthcare is another significant concern for military spouses facing divorce. Under the 20/20/20 rule, a former military spouse can continue to receive full military medical benefits and commissary and exchange privileges if the marriage lasted at least 20 years, the service member performed at least 20 years of service creditable for retirement pay, and there was at least a 20-year overlap between the marriage and the military service.
If the marriage does not meet the 20/20/20 rule but meets the 20/20/15 rule (15-year overlap between marriage and service), the former spouse may receive transitional medical benefits for one year following the divorce. After that, they may purchase a conversion health policy.
- Housing Benefits: In a military divorce, decisions about housing depend on whether the couple lives in on-base housing or off-base housing. If the couple lives on base, the non-military spouse may have to leave the housing unit after the divorce. If the couple lives off-base, the division of the property follows the state’s property division laws.
- Child Custody and Support: Child custody and support are determined based on the best interests of the child, just like in civilian divorces. However, military life can complicate these matters due to deployments, relocations, and the demands of military service. Courts will consider these factors when making custody and visitation decisions. In terms of child support, the military has strict regulations ensuring that service members fulfill their family support obligations. If a service member fails to pay child support, their wages can be garnished.
- Spousal Support: Spousal support, or alimony, is not automatic. It is determined based on various factors, including the length of the marriage, the income and earning potential of each spouse, the standard of living during the marriage, and the needs and circumstances of each spouse. The military does have regulations in place to ensure that service members provide adequate support to their families. If a service member fails to meet these obligations, enforcement measures can be taken.
Embarking on the journey of a military divorce requires a clear understanding of your rights and a strategic approach to protect them. The first and most crucial step is to engage the services of a lawyer who specializes in military family law. Their expertise will be invaluable in guiding you through the process, helping you understand your entitlements, and advocating for your best interests.
As you proceed, it’s essential to arm yourself with all the necessary information. This includes details about your spouse’s military service, financial documents, and information about your marital assets. Gathering this information is not just a bureaucratic exercise; it’s a critical step in determining your entitlements in the divorce.
Take the time to familiarize yourself with the laws and regulations that apply to military divorce, including the USFSPA, the SCRA, and the military’s regulations on family support. By understanding these laws, you can set realistic expectations and ensure your rights are protected.
Negotiating the terms of your divorce is a delicate process that requires patience, diplomacy, and strategic thinking. Working with your lawyer, you’ll need to negotiate the division of assets, child custody, and spousal support. If you and your spouse can reach an agreement on these terms, you can avoid a potentially contentious and protracted court battle.
Finally, once all terms are agreed upon, the court will issue a divorce decree, which is a legal document that outlines the terms of your divorce. Review the decree carefully to ensure it accurately reflects the agreed-upon terms. Once the divorce is finalized, you’ll need to take any necessary steps to implement the terms of the divorce, such as updating your beneficiary designations and dividing retirement accounts.
Understanding what a military spouse is entitled to in a divorce can empower you to navigate this challenging process with confidence. Every situation is unique, and it’s essential to seek legal advice tailored to your circumstances.
At Cynthia H. Clark & Associates, we recognize the unique challenges of military divorce, and we’re committed to helping you navigate this complex process. Our experienced attorneys can provide the guidance and advocacy you need to protect your rights and achieve a fair outcome. We invite you to contact us today for a consultation.