Many issues raised in a military divorce involve determining proper jurisdiction, dividing military retirement, calculating child support and spousal maintenance, and addressing parenting time issues.
To initiate a dissolution proceeding in Washington, the military member or the spouse must reside in or be stationed in Washington, regardless of which party initially files the divorce. If the service member is the party who is going to be served with paperwork, he or she must be personally served with the Summons and Petition.
Servicemembers Civil Relief Act
Military members are afforded extra protections under the Servicemembers Civil Relief Act (SCRA) to safeguard their rights in the event that they are deployed or out of the state temporarily on duty (TDY). These protections are in place to prevent a court from issuing default orders against a military member who physically and/or logistically cannot appear in the case to represent himself/herself. A divorce can be initiated while a military member is deployed overseas, so long as the military member is properly served under the Hague Convention. At the discretion of the court, a military member may request a stay of proceedings until the military member returns to the United States.
Housing & BAH
Once a divorce is initiated, a non-military spouse will no longer be able to live on base while the divorce is pending (unless there are issues of domestic violence) and after the divorce. Until a temporary or final court order is entered regarding spousal and child support, each military branch requires service members to pay the spouse a pro rata share of their BAH with dependents. However, a court order, once entered, supersedes the military branches’ support requirements. A servicemember’s BAH and housing options will change once the divorce is finalized. If a servicemember does not have at least 50% “custody” of the parties’ children, the servicemember will lose his or her BAH with dependent rate and will lose the right to on-base family housing. The proper amount of BAH will need to be accounted for in determining the parties’ future support obligations to one another.
Child Support & Spousal Maintenance
For purposes of calculating child support and spousal maintenance, a servicemember’s base pay, BAH, and BAS are included in the member’s gross income. Any additional specialty pay is also included in the member’s gross income. In a case involving a former military member, VA Disability pay is included in the former member’s gross income, along with any type of retirement pay, including combat-related special compensation.
Parenting plans are often more unique in military family law cases because they need to account for the servicemember’s potential deployment, relocation, or temporary duty out of state. This does not mean that the military member cannot be the primary custodial parent. Military members are given additional protections when it comes to custody of their children. In the event a military member is deployed, the Uniform Deployed Parents Custody & Visitation Act prevents military members from losing their parenting time. You will need a clear and detailed plan for parenting time, co-parenting, and communications with your children.
There is a very common misconception that spouses must be married for at least ten years before a former spouse can collect a share of the servicemember’s military retirement. This is completely false. There is no minimum timeframe. The “10/10 Rule” is only applicable for the purpose of DFAS paying the former spouse directly his or her share of the retirement. Military retirement is divided pursuant to federal law. Dividing military retirement requires an attorney knowledgeable about federal law, the process with DFAS, and calculating each spouse’s share. Our firm can provide the professional legal advice necessary to navigate the complex issues surrounding military retirement.
The non-military spouse will need to consider health insurance options once the divorce is finalized. Unless the parties had twenty years of marriage that overlapped twenty years of service, Tricare will no longer provide coverage for the non-military spouse.
If you are a military member or the spouse of a military member, you will want an experienced “military divorce” attorney who can provide the best legal representation to ensure your rights are protected.