If you are an active duty member of the U.S. military (or married to one) and have made the difficult decision to divorce, it is important to understand that your process will differ from a civilian divorce in many ways. They include:
- Where and when you may file for divorce
- How child and spousal support are calculated
- Rights covering pensions and other benefits
In these and related areas, military personnel have obligations and rights that do not always have a civilian counterpart. When they do, procedures and requirements may differ.
Serving Divorce Papers During Deployment
The Servicemembers Civil Relief Act protects military personnel from service of divorce petitions, child support papers, and other legal proceedings while they are deployed overseas and for 60 days after they return to the U.S. These measures were originally implemented to ensure that service members did not come home to find themselves unexpectedly divorced and in support arrears.
Child and Spousal Support
When it comes to child and spousal support, military divorces are similar to civilian ones in that they generally use the support guidelines for whatever state is hearing the divorce action. If interim support is needed, each branch of the military has its own guidelines regarding amount and procedure, but they tend to be less than what the state would provide. The combination of child and spousal support may also not exceed 60% of a service member’s pay and allowances.
Calculating a Service Member’s Income
Military pay is different than most civilian forms of income. It consists of a base salary, but also includes a housing allowance that is calculated using the military member’s pay grade, family responsibilities, and location. Circumstances such as hazardous assignments can also create pay differentials, and it is not unusual to receive non-monetary compensation such as housing and board.
When calculating a service member’s income, it is better to use a Leave and Earnings Statement (LES) instead of a tax return, as some military income is tax-free. A LES will indicate the person’s base pay and allowances such as housing, as well as how much leave they have accrued.
While the law generally allows a divorce action to be initiated in the state where either spouse is legally domiciled, the federal Uniformed Services Former Spouses’ Protection Act indicates that the state where the service person resides is always the one with the authority to divide a military pension in a divorce. If a military spouse files in a different state, the court may not have the power to divide it unless the service member consents to it.
Some states have their own laws that affects how military pensions are treated. In Texas, military disposable retirement pay is treated as marital property and, because Texas is a community property state, it can be split equally if the non-military spouse is eligible to receive a share in their ex’s pension.
Division of Military Pension
Military pension division has specific challenges. Perhaps the biggest is that not all former spouses are entitled to receive a share. Unless they were married to their military spouse for at least 10 years while the member performed 10 years of active duty military service, they are not eligible for pension proceeds. While civilian pensions may have to be divided according to precise rules, length of marriage rarely affects eligibility.
Health Care Coverage
A non-military spouse has two potential options for health insurance after a divorce. If the parties were married for at least 20 years during the military member’s active service, the civilian ex-spouse may receive no-cost TRICARE coverage unless he or she remarries before age 55. The other option is conversion health coverage, also known as the Continued Health Care Benefit Program (CHCBP), which they may only receive if they are entitled to a share of their ex’s pension and do not remarry before age 55. Not all civilian coverage arrangements are as time-bound or include a remarriage restriction.
If you are a military member or military spouse seeking advice and representation for an upcoming divorce, contact the Van Dohlen Law Firm today. We have years of experience in helping service personnel work through their family law challenges, and are ready and available to help you too.