Military Divorces: How They are Different and What You Need to Know
By: Z Family Law
Military Divorces Present Special Issues
Military divorces – i.e. those divorces which involve at least one active or retired military service member – present a series of unique considerations and issues compared with non-military divorces. The State of Maryland has state laws governing jurisdiction (or authority to decide), alimony, and custody, to name a few, which are relevant to these divorces. In addition, there are federal laws governing, for example, federal benefits, which must be accounted for and given due attention. This is why you may wish to consult with a lawyer who understands military divorces.
To start, in order to file for divorce in Maryland, at least one member of the marriage must be stationed in Maryland. To serve a military spouse properly, the paperwork must be hand-delivered to that individual; however, the military spouse can also sign a waiver which removes this in-person delivery requirement. If the divorce entails custody of a child, the custody proceeding must be brought in the place where the child last resided for a continuous six months, not including temporary absences. This may mean that divorce and custody may be separately filed, although in a majority of cases, it makes sense to file them together.
Living Allowance
Living allowance is one of the largest areas of contention in military divorce matters. In any case involving the military spouse’s income, whether it’s alimony or child support, it is important to know how to read a servicemember’s Military LES (Leave And Earnings Statement) and be able to understand various codes as well as the benefit(s) he/she receives both from basic pay and from the housing and commissary allowances. For alimony, one may easily argue that the benefits one receives for housing and food defray one’s cost and increase one’s ability to pay alimony. Meanwhile, for child support, which is nondiscretionary, both allowances matter for the purposes of income. Income, for the purposes of child support, includes “expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business to the extent the reimbursements or payments reduce the parent’s personal living expenses,” per Md. Family Law Code Ann. § 12-201(b)(3)(xvi).
Military Spouses are Entitled to Delayed Responses
Spouses serving in the military can take longer than normal to respond to a divorce petition. The reason for this is because military personnel are impacted by the Servicemembers Civil Relief Act which, among other things, grants military spouses up to 90 days to respond to a divorce filing. This delayed response is only possible while the spouse is on active duty. This delayed response is highly significant because it allows military spouses more time to consult with an attorney before filing a response or making other critical decisions. Of course, as with the service requirements, military spouses can choose to file a response sooner if they wish. Failing to file a response can pave the way for the filing spouse to go forward with divorce and/or custody by default, i.e. without the military or ex-military spouse’s participation.
The 20 / 20 / 20 Rule
The “20 / 20 / 20” rule refers to the requirements which must be met for a non-military spouse to continue receiving medical benefits following divorce of an active service member. Non-military spouses are often quite worried about their ability to access certain benefits after a divorce; the 20 / 20 / 20 rule provides access to medical benefits, but only if all the requirements are fulfilled. The requirements are as follows: (1) the marriage must last a minimum of 20 years, (2) the military spouse must have logged at least 20 years of service, and (3) the military service and the marriage itself must coincide for at least 20 years.
Property Division / Retirement Accounts
One of the most important considerations when dealing with military divorces relates to property division. More specifically, one must consider retirement benefits, including accounts with DFAS, TSPs (thrift savings plans) and FERS (federal employee retirement system) accounts, because federal law prevents a military spouse’s retirement benefits from becoming marital property in certain instances. The USFSPA – Uniformed Services Former Spouses’ Protection Act – protects retirement accounts for military spouses married less than 10 years: those spouses with marriages shorter than 10 years retain 100% of their retirement benefits, even in divorce. However, after 10 years, spouses married to a military member are eligible to receive a portion of the retirement benefits. But, even for marriages 10 years or longer, the other spouse isn’t automatically entitled to a portion, the court must grant a portion based on the totality of the circumstances. Naturally, the longer the marriage and the greater the non-military spouse’s contribution to the marriage and to the military spouse’s career, the more likely he/she is to receive a portion of the military spouse’s retirement benefit. Similarly, if the fault for the dissolution of the marriage lies with the non-military spouse, he/she will have a harder time receiving a portion of the military spouse’s retirement benefits.
When you do bargain for retirement benefits, make sure that you have competent counsel to advise you about survivor benefits which may apply. A survivor benefit is a lifetime annuity which a qualifying dependent may receive after the payor’s death. Similarly, who pays for the survivor benefit after retirement but during the payor’s lifetime is a point that must be bargained for.
If you are considering divorce, contact Z Family Law, LLC, by calling 301-388-5528 to learn more about your rights and entitlements, and what the military divorce process looks like.