Make the choice of attorney your top priority. If you wish to obtain the best possible result from your divorce involving a member of the military, the first and arguably most crucial step is to choose the right lawyer. It is wrong to assume that any lawyer will best represent you.
The secret of success in obtaining all the benefits to which you are entitled rests largely, if not entirely, on your choice of attorney. Get that wrong and you may lose - big time. First and foremost hire a lawyer who knows the relevant legislation.
The Uniformed Services Former Spouses' Protection Act (USFSPA) is a complex and detailed piece of legislation. It consists of military regulations, state laws and federal statutes. To protect yourself and to gain maximum benefits, your attorney must know the Act and its regulations - thoroughly.
And to reinforce this point, the Act has been amended in recent years making your choice of a lawyer with up-to-date knowledge essential. It's tough enough going through the divorce process without having problems with your legal advisor. Choose someone who knows the law, does their research and is respected by judges.
In selecting your lawyer, have a list of questions to which you want answers, take a friend for moral support and a later opinion and don't be in a hurry to make a decision. Remember lawyers are bound by a series of ethics which begin, "A lawyer shall provide competent representation to a client". Settle for nothing less.
And as with all legal issues, this article does not purport to give definitive answers. Be guided by but do not rely on these words to negotiate your divorce.
Whilst we all may be equal under the law, military divorce differs from civilian divorce and it's your responsibility, with guidance from your lawyer, to know what you can claim and how to go about it.
To further complicate matters, the USFSPA allows the states to decide on some benefits and directs that federal law will rule on others. In specific terms, the following benefits are decided as follows:
- division of military pensions
- retirement pay
- medical care
- commissary and exchange provisions
- emergency child support
Now just so that you aren't too confused, in the case of a dispute, federal law overrides state law and wait for it, you are not automatically entitled to any benefits - you must apply for them.
A major issue is that of who gets what regarding retirement benefits. Do not think that the resolution your friend's case achieved will mean the same result for you. The matter is c0mplicated.
There was a time in the 1970s when certain state courts treated military pensions as community property and awarded part thereof to the spouse. Federal law in 1982 set new guidelines which referred military pension issues to state courts but taking into account military regulations.
In short, for a spouse to benefit, the marriage must have existed for at least 10 years with at least 10 years overlapping with the spouse's military service. No more than 50% of the pension may be awarded to the spouse and this regardless of the number of divorces. That is to say if a spouse is granted 40% of the pension, a second spouse could only receive a maximum of 10% maintaining at least 50% of the pension for the military spouse.
If the marriage has not lasted for 10 years or if there has not been an overlapping of military service and marriage of at least 10 years, the court may still order a portion of the pension be awarded to the spouse. The only rider here being the military will not pay the spouse directly. The member of the military would receive the full pension and be ordered by the court, under pain of possible contempt charges, to pay the ex-spouse whatever the court determines. In short, the 10 Year Rule only determines how the spouse will be paid.
The pension holder can lose up to 65% of their pension if a claim for alimony and/or child support is awarded by the courts.
But location is another aspect of military benefits. Not only for the serving of divorce papers but also for the behavior of the courts. A state which handles a divorce hearing may have different regulations from another state. Jurisdiction is a tricky business and where a party to the divorce is currently living and where their permanent address is recognized by a state court, may not be one and the same. The USFSPA regulations affect state rulings and every case must be considered unique.
Remember that the USFSPA does not make it mandatory that a divorced member of the military should share their pension with their former spouse.
There are certain variations to a military divorce and spouses must be aware of same. For instance if a serving officer is served with divorce papers, the case may not come before a court until 60 days after the military spouse has finished their tour of duty. Mind you these matters are at the discretion of the court. And it's worth noting that the longer a marriage continues, the greater may be the benefit to the spouse.
Disability pay may not be awarded to the non-military spouse although a court may consider awarding part of it for child support.
Another possible benefit can accrue if the military spouse signs up for the SPB or the Military Survivor Plan Benefit. This is an insurance available to ex-military personnel and the application form lists the person or persons who will benefit should a payout occur. Spouses need to ensure that they are listed as a beneficiary.
Divorce is a sad but ever-present part of society today and the military is not exempt. Whilst it may seem trite to mention the following to someone in the process of divorce, possibly the best course of action is to develop a strong marriage - prevention being better than cure.
The laws and regulations regarding divorce in the military are at times challenging even to a specialist lawyer. To be sure that you gain each and every benefit to which you are entitled, act promptly but always with the expert guidance of a lawyer who knows the subject intimately and treats you as a person and not as a case number.
Here are additional resources you might be interested in:
What does your Divorce Attorney need to know about your Military Divorce?
Factors Contributing to Increased Military Divorce Rates
Are you considering getting a divorce? There's an excellent ebook about deciding whether to Get a Divorce or Stay In the Relationship. Every couple should read this before making the decision.
If you're on the verge of having a divorce, read this to Save Your Marriage.