Protecting Your Rights Through a Personalized Approach

If you’re one of the more than 1.1 million active duty members of the United States military or their spouse, your divorce will be significantly different than a normal civilian divorce. Additionally, all service members have certain rights that must be respected throughout the divorce process, as well as other obligations that are different from civilians which can further complicate your case. Let’s take a look at some of these important differences now.

Where to File

Any divorce, either civilian or military, must be filed with a court that has “jurisdiction,” or legal power over you. In other words, a couple who was married and has resided their entire lives in Florida cannot decide to file for divorce in Texas or California, since those family law courts don’t have jurisdiction over them. Predictably, things are a bit more complicated in the military. In most cases, military couples must file for divorce in the state where the military spouse is domiciled or a resident. For those who are stationed overseas, you can usually choose to file for divorce in your home state, your spouse’s home state, or the last U.S. state you were stationed in.

Calculating Child & Spousal Support

Like any regular civilian, military personnel are legally required to support their children, and as such the Department of Defense requires service members to comply with all child custody, child support, and spousal support orders issued as part of a divorce. The penalties for failing to adhere to these terms are quite severe, including possible a possible Court-Martial and dishonorable discharge.

If the paying spouse is an active service member, calculating their income is quite a bit different from a civilian divorce. Military paychecks are not exactly straight forward, so calculating salary is more complex. A service member’s rank, pay grade, and housing allowance are all considered, as well as any other pay differentials, such as hazardous assignments. Some service members also receive “in-kind” compensation, such as housing, meals, or other non-monetary compensation. The best way to determine a service member’s income is with a Leave and Earnings Statement, not a tax return.

Child Custody & Visitation

Child custody is always a challenging provision, but even more so when one spouse is on active duty in the military. Parenting plans become more complex, purely because there are times in which one or both spouses may be deployed as part of their service. As a result, military parents must create a Family Care Plan, which details what will happen in the event a spouse is deployed.

A family care plan is mandatory if a military parent may be deployed or absent from their child aged 19 or under for a period of 31 days or more. Your plan must do several things:

• Designate caregivers and provide their contact information
• Provide information about the child’s other parent (if the other parent is not listed as a caregiver)
• Provide information for how a child will be supported financially in a parent’s absence (including giving powers of attorney to the caregiver or another responsible adult)
• Provide information about transporting family members should the plan go into effect
• Designate who will take child custody in the event of the service member’s death.

There are numerous other things that must also be worked out when one spouse is in the military, including custody and visitation schedules, which may be further complicated when the military parent is re-stationed or promoted to a new position.

Pension Rights

Military pensions are considered marital property and thus subject to property division during a divorce proceeding. The laws of the state you decide to file your divorce in will be the ones which govern the division of your retirement, even though the military is a federal employer. Therefore, it’s important to speak with a lawyer when making the decision of where you would like to file your divorce.

If a service member is already retired and receiving pension benefits, then dividing the pension is relatively simple. However, if you plan on doing anything other than an equal 50-50 division and have not yet retired, then things will get considerably more complicated. The non-military spouse will often have to consider whether they wish to take a lump-sum for their portion of the benefits, or wait and see when the serving spouse retires, which can leave a considerable amount of risk involved.

It’s strongly advised you speak with an attorney when dividing military pension benefits. There are so many extra aspects to consider, and not having the experience of knowing how these can impact your future going forward can lead to an unfavorable conclusion.

If you need assistance with a military divorce, Mitchell & West, LLC can help you! Our Miami divorce attorneys are dedicated to helping those who are both serving in the United States military or living in the private sector get the legal assistance they need to find the optimal solution to their case. We take a team-oriented approach to each case, so you can be confident that you will have the experience of each of our skilled attorneys on your side through every step of the process.