Military Divorce Has Unique Legal Aspects

We Have The Experience To Effectively Represent You In Military Divorce

The military personnel of our country are often separated from their families for months, if not years, at a time. The stress of being apart from a loved one, the worry of having a spouse at war, and the unexpectedness of being left alone with a child, are just a few of the scenarios unique to military marriages. The pressures specific to military marriages can make or break one, and unfortunately, divorce is not a stranger to our soldiers.

The factor of being in the military offers particular challenges to a married couple on an emotional level, but generally does not provide specific benefits when it comes to marital dissolution. Servicemen and woman receive no preference when it comes to divorce, and a judge will not allow a military background to be used to advantage in litigation. The only major difference between a civilian divorce, and one involving military personnel, is that the proceedings can be stayed under the Service members Civil Relief Act if, and when a party is deployed. There are however, issues that may be of more concern to our soldiers, because of their travels between states and countries, and the composition of their assets.

In particular, a service member's pension is typically one of his/her larger assets earned or obtained through military service. Thus, military personnel in the process of divorce should know that there is a good possibility that their retirement pension may be shared with a spouse through the process of dissolution. This is due to a 1982 Congressional Act entitled the Uniformed Services Former Spouses Protection Act (USFSPA). This act permits judges to divide a pension in ways that will benefit the divorcing spouse. The act also requires that in order to divide the pension, the divorce court must have jurisdiction over the serviceman who is going through the divorce. Jurisdiction can be obtained either through the serviceman's consent, or if he legally resides in the state where the divorce is occurring. Thus, service men and woman may also be more affected by jurisdictional issues.

Understanding Jurisdictional Issues In Military Divorce

Jurisdiction is the ability of a Court to hear a case. In other words, if jurisdiction is conferred on an individual, it means that the Court may hear the matter within its arena. There are numerous ways to establish if a Court has jurisdiction but doing so usually includes determining where the parties reside. This may or may not be where a soldier is stationed. For example, a court does not necessarily have jurisdiction if a serviceman is temporarily sent to a different state or country, the latter may be regarded as only an absence from his/her home state. In this case, the court might attempt to gain jurisdiction over the pension by ruling that a serviceman's involvement in the divorce case implied their consent to the case, and thus the recognition of local laws. Should this attempt at filing fail, a spouse might then go to the serviceperson's home state, and petition a court there to divide the serviceperson's pension. This is a very specific area of the law and an experienced attorney can help determine where to file for dissolution.

Once jurisdiction is established, a divorce court can then determine how a retirement plan is to be divided. In making this determination in California, the serviceman's retirement can be divided, regardless of whether the marriage was six years, or sixteen years. The length of the marriage matters only in determining whether the serviceperson has to pay a share of his/her benefits directly to the spouse, or whether these benefits would be paid directly by the Defense Finance and Accounting Service (DFAS).

Determination as to whether a spouse will receive payment directly from DFAS relies on a concept known as the "10/10 Rule." Under this rule, a service person must pay their civilian spouse a share of the military retirement pension if the marriage lasted for less than ten years. However, if the marriage is ten years or more, and coincided with ten years of creditable military service, the serviceman or servicewoman will not have to pay. In the latter situation, the responsibility for payment of retirement benefits falls on the shoulders of the DFAS.

The phrase "creditable military service" is routinely raised amidst discussions of payment. This phrase is important in reference to the division of a pension. In layman's terms, creditable military service is defined as time in the armed forces. This time is then broken down, and defined with specificity as to active duty personnel and reservists.

For those who were on active duty, creditable military service is defined as those years of service that a serviceman was eligible for pay. This time does not include any periods during which a serviceman was incarcerated or considered away without leave (AWOL). By contrast, for those who served in the military as reservists, creditable military service is defined as those years in which the individual earned at least fifty points. Reservists earn fifteen points each year for being in the reserves, and an additional one point for each day in which they perform actual service.

When a service person has been married for at least 10 years, and the marriage coincides with 10 years of creditable military service, questions can arise concerning DFAS and its payments. For example, many servicemen or servicewoman may be curious as to what the maximum amount is that the DFAS will pay a divorced spouse. Under current laws, DFAS will pay up to fifty percent of a serviceman's retirement pension. In some rare cases, a service person may have to pay an additional amount out of his or her own pocket if the court awards the ex-spouse a percentage that is more than half of the retirement plan.

We Are Prepared To Help You With A Military Divorce

The law firm of Feinberg & Waller is located in the vicinity of Pt. Mugu, Pt. Hueneme, Edwards Air force Base, and the Los Angeles Air Force Base. If you are a member of our armed services or part of the military, and find yourself in need of help with your divorce, call the law firm of Feinberg & Waller. A team of experienced attorneys can assist you in navigating the complex path of military divorce, work with you toward settlement and help you through this difficult period.