Category: Military Family Law

Divorce is a challenging process, filled with emotional upheaval and legal complexities. For military spouses, the process can be even more daunting due to the unique aspects of military life and law. One of the most common questions military spouses ask is, “What am I entitled to in a divorce?”  The following addresses this complex issue, providing a comprehensive guide to the rights and entitlements of a military spouse in a divorce.

Understanding Military Divorce

Before we delve into the specifics of what a military spouse is entitled to in a divorce, it’s important to understand the unique aspects of a military divorce. While the basic process is similar to a civilian divorce, there are additional factors to consider due to the military lifestyle and federal laws. These factors can significantly impact the division of assets, child custody, and spousal support in a military divorce.

Rights and Entitlements of a Military Spouse in a Divorce

1. Division of Military Pensions: One of the most significant assets in a military divorce is the military pension. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), military pensions are considered marital property and can be divided between spouses in a divorce. However, the division is not automatic, and the state court will determine the exact division based on the laws and principles of equitable distribution.
   
   The USFSPA also provides a method for direct payment of a portion of a military retiree’s pay to the former spouse if the marriage lasted at least ten years overlapping with ten years of service. This is known as the “10/10 rule.” However, even if the marriage does not meet the 10/10 rule, the former spouse may still be entitled to a portion of the military pension; it just won’t be paid directly from the Defense Finance and Accounting Service (DFAS).
2. Survivor Benefit Plan (SBP): The SBP is a form of protection for the family of a retired military member. It provides ongoing income to survivors in the event of the retiree’s death. In a divorce, the military spouse can be designated as the SBP beneficiary, ensuring they continue to receive income if the service member dies. However, this must be specified in the divorce decree or settlement agreement.
3. Healthcare Benefits: Healthcare is another significant concern for military spouses facing divorce. Under the 20/20/20 rule, a former military spouse can continue to receive full military medical benefits and commissary and exchange privileges if the marriage lasted at least 20 years, the service member performed at least 20 years of service creditable for retirement pay, and there was at least a 20-year overlap between the marriage and the military service.
   
   If the marriage does not meet the 20/20/20 rule but meets the 20/20/15 rule (15-year overlap between marriage and service), the former spouse may receive transitional medical benefits for one year following the divorce. After that, they may purchase a conversion health policy.
4. Housing Benefits: In a military divorce, decisions about housing depend on whether the couple lives in on-base housing or off-base housing. If the couple lives on base, the non-military spouse may have to leave the housing unit after the divorce. If the couple lives off-base, the division of the property follows the state’s property division laws.
5. Child Custody and Support: Child custody and support are determined based on the best interests of the child, just like in civilian divorces. However, military life can complicate these matters due to deployments, relocations, and the demands of military service. Courts will consider these factors when making custody and visitation decisions. In terms of child support, the military has strict regulations ensuring that service members fulfill their family support obligations. If a service member fails to pay child support, their wages can be garnished.
6. Spousal Support: Spousal support, or alimony, is not automatic. It is determined based on various factors, including the length of the marriage, the income and earning potential of each spouse, the standard of living during the marriage, and the needs and circumstances of each spouse. The military does have regulations in place to ensure that service members provide adequate support to their families. If a service member fails to meet these obligations, enforcement measures can be taken.

Embarking on the journey of a military divorce requires a clear understanding of your rights and a strategic approach to protect them. The first and most crucial step is to engage the services of a lawyer who specializes in military family law. Their expertise will be invaluable in guiding you through the process, helping you understand your entitlements, and advocating for your best interests.

As you proceed, it’s essential to arm yourself with all the necessary information. This includes details about your spouse’s military service, financial documents, and information about your marital assets. Gathering this information is not just a bureaucratic exercise; it’s a critical step in determining your entitlements in the divorce.

Take the time to familiarize yourself with the laws and regulations that apply to military divorce, including the USFSPA, the SCRA, and the military’s regulations on family support. By understanding these laws, you can set realistic expectations and ensure your rights are protected.

Negotiating the terms of your divorce is a delicate process that requires patience, diplomacy, and strategic thinking. Working with your lawyer, you’ll need to negotiate the division of assets, child custody, and spousal support. If you and your spouse can reach an agreement on these terms, you can avoid a potentially contentious and protracted court battle.

Finally, once all terms are agreed upon, the court will issue a divorce decree, which is a legal document that outlines the terms of your divorce. Review the decree carefully to ensure it accurately reflects the agreed-upon terms. Once the divorce is finalized, you’ll need to take any necessary steps to implement the terms of the divorce, such as updating your beneficiary designations and dividing retirement accounts.

Understanding what a military spouse is entitled to in a divorce can empower you to navigate this challenging process with confidence. Every situation is unique, and it’s essential to seek legal advice tailored to your circumstances.

At Cynthia H. Clark & Associates, we recognize the unique challenges of military divorce, and we’re committed to helping you navigate this complex process. Our experienced attorneys can provide the guidance and advocacy you need to protect your rights and achieve a fair outcome. We invite you to contact us today for a consultation.

A high-asset military divorce requires expert guidance. We’ll discuss the intricacies of a high-asset military divorce, from the unique challenges to the legal maze, and equip you with strategies to safeguard your assets.

In a high-asset military divorce, you’re not just dealing with a larger quantity of assets. You’re dealing with a more diverse portfolio of assets, each with its own set of division rules. These can include:

1. Real Estate: From the family home to vacation homes and investment properties.
2. Business Interests: If either spouse owns a business, the other may have an interest.
3. Investments: Stocks, bonds, and mutual funds.
4. Retirement Accounts: These can include military pensions, 401(k)s, IRAs, and more.

The Military Factor: A Whole New Ball Game

A military divorce brings its own set of curveballs, such as:

1. Jurisdiction: The location of the divorce proceedings can be challenging in military divorces.
2. Military Benefits: Military benefits, such as pensions, can complicate the property division process. Further, in order for military benefits to be conveyed to a non-service member spouse after a divorce, certain rules must be satisfied for service members.
3. Federal Laws: Military divorces are governed by both state and federal laws, adding another layer to navigate.

The USFSPA allows state courts to divide military retirement pay as a marital asset. The law has specific rules and limitations.

Navigating a high-asset military divorce can feel like you’re walking a tightrope. It’s a delicate balance of safeguarding your assets, understanding complex legal implications, and striving for a fair settlement. This challenging period can pave the way for a fresh start and financial stability.

A high-asset military divorce is not a walk in the park, but with the right information and legal guidance, you can navigate this complex process with confidence.

With the right resources and support, you can turn this high-stakes operation into a victory for your financial future. Remember, the only way out is through, and with every step, you’re moving closer to the other side.

How is a military pension divided in a high-asset military divorce?

The division of a military pension is governed by the USFSPA and the “10/10 Rule.” However, in a high-asset divorce, other factors may come into play, such as the presence of other substantial assets.

Can a business be divided in a high-asset military divorce?

Yes, a business can be divided in a high-asset military divorce. However, the specifics depend on various factors, including the business’s value, the spouses’ involvement in the business, and state laws.

What role do prenuptial and postnuptial agreements play in a high-asset military divorce?

Prenuptial and postnuptial agreements can play a pivotal role in a high-asset military divorce. They can shield individual assets, outline the division of assets, and simplify the divorce process. However, they must be legally sound and fair to both parties.

Everyone knows that divorce is a whirlwind of emotions, legal jargon, and, of course, the dreaded property division. But when you throw in the military aspect, it’s like adding fuel to the fire. Military divorce property division is its own set of rules and regulations.

We’ll walk you through the ins and outs of military divorce property division, from the unique factors at play to the legal considerations you need to keep in mind.

Military divorces aren’t your run-of-the-mill separations. Here’s why:

1. Jurisdiction: This is a fancy term for where the divorce proceedings take place. In military divorces, determining jurisdiction can be difficult. It could be where the military member is stationed, where they claim legal residency, or where the spouse resides.
2. Military Benefits: The military offers a slew of benefits, from pensions to healthcare. These can complicate the property division process.
3. Federal Laws: Military divorces are governed not only by state laws but also by federal laws. This dual jurisdiction can make things more complicated.

The USFSPA determines military divorce property division. It’s the federal law that allows state courts to divide military retirement pay as a marital asset. The law has specific rules and limitations.

Dividing a military pension. It’s a complex process governed by the “10/10 Rule.” This rule states that for the Department of Defense to make direct payments to a former spouse, the couple must have been married for at least 10 years, overlapping with 10 years of service. However, if you don’t meet the 10/10 Rule, you may still be entitled to a portion of the pension. It just means the payments won’t come directly from the DoD.

Military benefits aren’t just limited to pensions. They also include:

• Commissary and Exchange Privileges: These are shopping benefits at military stores. They’re usually retained if the spouse meets the “20/20/20 Rule” (20 years of marriage, 20 years of service, and 20 years of overlap).
• Healthcare Benefits: These can be retained under the 20/20/20 Rule or the “20/20/15 Rule” (15 years of overlap).

Navigating the battlefield of military divorce property division can be difficult. But remember, knowledge is power. Understanding the unique factors at play, the legal considerations and the division of military benefits can help you strategize effectively.

Military divorce property division is not simple, but with the right information and legal guidance, you can ensure a fair division of assets. After all, this challenging period can lead to a new chapter of financial independence and stability.

With the right resources and support, you can navigate this complex process and come out on the other side stronger and more resilient.

What happens to the family home in a military divorce?

The family home can be divided based on state laws and the specific circumstances of the divorce. It’s not a one-size-fits-all answer.

Can a former spouse receive both a portion of the military pension and alimony?

Can a former spouse receive both a portion of the military pension and alimony?
A: Yes, A former spouse can receive both a portion of the military pension and alimony. However, the specifics depend on various factors like the length of the marriage, the spouse’s income, and specific state laws.

How is child support determined in a military divorce?

How is child support determined in a military divorce?
A: Child support in a military divorce is typically determined by state guidelines. However, the military does have regulations in place to ensure that service members fulfill their family support obligations.

When you begin divorce proceedings in Maryland, you eventually must divide your assets with your spouse. For servicemen and women, dividing their military pensions is a complex process that is governed by federal law, military rules and state laws. Other factors to be considered include how long the couple was married, and for how many of those years the military spouse served in the military.

In addition to Maryland’s divorce laws, the Uniformed Services Former Spouses’ Protection Act (USFSPA) governs how the military spouse’s retirement benefits will be calculated and divided as a part of the divorce settlement.

What is the role of the USFSPA in military pension division?

Federal law does not provide an automatic right for the divorced spouse of a military member to receive any portion of the service member’s retirement pay regardless of how long the couple was married. The Uniformed Services Former Spouses’ Protection Act (USFSPA) was passed by Congress in 1982, authorizing states to divide military retired pay under certain conditions. Property division laws in the state where the divorce takes place will govern the amount of the award. The requirements of USFSPA also extends to alimony and child support.

While the state court will divide the military pension, it must abide by the USFSPA guidelines. Court orders that are enforceable under the USFSPA include:

• Final divorce decrees
• Annulment
• Legal separation
• Court-ordered property settlement agreements

Military retirement pay will be divided as a marital asset in an equitable division state and the award must be expressed as either a fixed dollar amount or a percentage of disposable retired pay (gross retired pay less allowable deductions).

How is military retirement pay divided?

A common method for calculating how a military pension will be divided is by using a “coverture fraction” which calculates the years of military service that coincided with the marriage divided by the total years of military service at the time of retirement in order to arrive at the “military portion” of the total asset. The nonmilitary spouse theoretically has a right to up to half of the marital portion.

For example, if the couple was married for a period of 18 years overlapping with the spouse’s military service and the military spouse had 20 years of service the equation will look like this: 18/20 = .90 or 90%, which represents the marital portion, half of which is 45%.

What is the 10/10 rule?

In order to receive their portion of a military retirement settlement directly from DFAS (Defense Finance and Accounting Service), which is the military’s payroll agency, the spouse must meet the military’s “10-10 rule,” which means that the marriage must have lasted for ten years that coincide with at least ten years of military service. If the 10-10 rule is not satisfied, then DFAS will not be involved in disbursing the nonmilitary spouse’s military retirement asset.

For spouses that meet the 10-10 rule, the court order is directed to DFAS as a “Military Retired Pay Division Order,” and it must be submitted in compliance with DFAS’s strict formatting requirements.

We have only touched on one aspect of the complicated topic of how a military pension might get divided in a Maryland divorce.  If you are a military service member who is contemplating divorce, or if you are married to a member of the military, you should consult with an experienced divorce attorney who is fully versed in the complexities of Maryland military divorce.

You are welcome to contact Cynthia H. Clark & Associates, LLC to schedule a consultation to discuss your divorce. We understand the complicated nature of military divorce. We will represent your interests and get you the settlement you deserve.