If you’re preparing for or going through a military divorce, you should know upfront that the process is going to be different than if you were going through a regular divorce. Other issues can arise if one or both spouses are in the military. From where to file for divorce to military pensions and benefits, there are several key issues you need to be aware of. We’re going to explore these issues so that you can be better prepared for what lies ahead.
Where to File for a Military Divorce
Since many military members move around frequently, it can be confusing to know where to file for divorce. Typically, couples file for divorce where either spouse has a legal residence. The person filing for divorce will file in the state where they live if they’ve lived there for at least 6 months. In other cases, the service member can file where they are currently stationed, where they claim legal residency or where the nonmilitary spouse lives.
Many people look at how the state handles the division of military pensions when deciding what state to file in. The state of legal residence of the military member always has the power to divide military pensions. If the divorce is filed in a state that is not where the military member lives, the court may not have the power to divide the pension. This can be problematic in many cases and is why many people look at how a particular state may handle a military divorce and the division of pensions before filing there.
Will the Military Give Me a Lawyer?
While the military cannot give you a lawyer, each military branch does have legal assistance attorneys available who can help you with your case. They can do things like answer questions. write letters for you, review and revise legal documents, and negotiate on your behalf.
Hiring a civilian lawyer to handle your divorce case is usually the best choice. Some people qualify for legal help from a non-military legal aid group if they are low-income.
Military ID Cards & Divorce
If you have filed for divorce and your spouse is in the military, your spouse does not have the authority to take your military ID card away. The military card and the privileges that come along with it are granted by the U.S. government, so the spouse does not have the authority to take it away.
If you are a former military member’s spouse and are not remarried, you can keep your military ID card if you meet the 20/20/20 rule. This rule requires at least 20 years of marriage, at least 20 years of military service, and at least twenty years of marriage overlap and military service.
Divorce and the Division of Military Benefits
Many people wonder what will happen to their military benefits when they divorce. According to the law, there is only division of disposable retired pay. This equals the full military pension minus certain deductions. This does not include VA disability compensation and Combat-Related Special Compensation, and most military disability retired pay. If a servicemember receives any of those types of benefits, the former spouse’s portion would be reduced. A portion of those benefits can be awarded for child support or alimony. Despite the exceptions listed above, the courts will divide a service member’s disposable retired pay.
What Happens to My Spouse’s Military Pension if We Were Married Less Than 10 Years?
While state law will determine how a military pension is divided under divorce, the Uniformed Services Former Spouses’ Protection Act has a 10/10 rule that governs payments. It states that at least 10 years of marriage overlapping at least 10 years of military service is needed for direct payment. If those requirements are not met, the spouse can get a division of retired pay but not a direct payment.
What about the Thrift Savings Plan and The Survivor Benefit Plan?
The Thrift Savings Plan is a retirement savings plan, similar to a 401K. It can be divided between spouses or can be given to one party in exchange for another asset.
A service member can buy a death benefit known as the “Survivor Benefit Plan” when they retire. The person who is the beneficiary will receive ongoing payments after the service member dies. Without this plan, the pension payments will end when the service member dies.
Military Pay and Wage Garnishment
Military pay is not exempt from wage garnishment. The only way to stop wage garnishment is to get a court order if the state allows it.
Military pay as well as military disability retired pay can be collected for support. The amount of garnishment is limited to 50% of the retiree’s disposable earnings if the retiree can prove he or she is providing more than half of the support of the other family members. Otherwise, the maximum amount is 60%.
Federal law determines what money can be garnished and what can not. The Basic Allowance for Housing and the Basic Allowance for Subsistence are the most common portions that are exempt from garnishment.
What Happens When a Servicemember is On Duty and Can Not Attend to the Divorce Proceedings
In some instances, a service member is on duty and can not immediately attend to the divorce proceedings. Many times, The Servicemembers Civil Relief Act can help. In these cases, the servicemember should request a stay of the proceedings. An application for an additional stay can be made at this time or later.
The service member should never ignore divorce papers. There are sometimes other legal remedies in the case. It’s best to consult with an attorney to look at all possible options.
The Bottom Line
When it comes to military divorce, it’s important to educate yourself about the differences that can occur so that you can be better prepared. This includes knowing where to file, how to obtain legal aid and knowing what happens to the division of assets.
You want to know how to protect yourself in all cases which includes knowing how to handle court proceedings when you are on duty. Hiring an experienced divorce attorney is the best way to handle your case and ensure that all details are handled properly.
