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Understanding Military Divorces: A Guide
Navigating a military divorce? You’re not alone in finding it a tad complex. Even seasoned divorce attorneys sometimes find military divorces challenging. There’s a lot of misinformation about the military’s role in these divorces, so let’s demystify some of that, especially around topics like military pay, pensions, and VA disability payments.
The Military does not involved itself in divorces
The term “military divorce” is not really accurate. The military does not get involved in divorces. However, military law, regarding pay, retirement and disability does plan a huge role. We will be addressing how that law applies to divorces.
The Military does get involved in domestic violence allegations, by issuing Military Protective Orders (MPO), separating an accused abuser, and sometimes even court-martialing them. The Military will also EROD (Emergency Return of Dependents) family members back to the states from overseas when the domestic violence is particularly severe.
Legal Assistance for Military Members
One of the benefits for military personnel going through a divorce is the availability of legal assistance at their respective bases. The Army, for instance, has a commendable system in place. These legal teams can assist with mediation, child custody advice, and even notary services. If this applies to you, it’s worth reaching out to your base’s legal center.
In New York there are 3 main locations to get legal assistance: Fort Hamilton in Brooklyn, West Point, and Fort Drum in Watertown.
The SCRA: A Protective Measure
The Servicemembers Civil Relief Act (SCRA) is a pivotal law for military members during a divorce. It offers protections, such as if you’re deployed and can’t make a court date. However, it’s essential to note that being in the military doesn’t guarantee a pause in your divorce proceedings. With modern technology, participation is possible from almost anywhere.
The service member will have to show that the military service has a direct impact on the ability to participate in the divorce, and inform the court when they will be ready to be able to participate in the future. The courts will not merely accept the service member’s word. They will want a letter or even to talk to the commander.
I’ve only seen one military divorce where the judge temporarily suspended divorce proceedings. The wife was a cook with the 82nd and they were going wheels up to Haiti. The judge got the company commander on the phone, and was told that the wife would be unavailable for one month. The judge adjourned the matter for two months.
The Uniformed Services Former Spouse Protection Act (USFSPA)
Another crucial piece of legislation is the USFSPA. The key point here? The division of your military retirement pay is influenced by the state where the divorce occurs. And while VA disability isn’t directly divided in a divorce, it can factor into child support or alimony calculations.
Prior to the USFSPA military retired pay was not divisible in a divorce. But, in the mid-1980’s Congress changed that to allow military spouses to get a share of the military retirement, just as spouses in the civilian world can.
I’ve a very detailed article on division of military retired pay under New York law. Just click the Hypelink
The Short Story is that a Judge can divide a military retirement in a divorce. The formula is to take the years of marriage divided by years in the service at the time of the divorce. For example, 10 years of marriage, and 20 years of service at the time of divorce gives us 50%. The spouse gets half or 25%. If there are 10 years of marriage and 10 years of service then the spouse gets 50% of the retirement as if the servicemember retired at 10 years.
The law creates a fiction: it assumes the service member retires on the date of the divorce, not when they actually retire.
The Ten Year Rule: Fact from Fiction
There is a myth that if a service member has been married for 10 years their spouse gets half of the retired pay. This is a simply not true. Anyone who tells you this has no clue what they are talking about.
There is a 10 year rule but is something entirely different. If a service member has to pay a portion of their military pay to a spouse, it is easier if DFAS does it directly. However, DFAS won’t unless the parties were married for at least 10 years with 10 years overlapping with 10 years of military service. When DFAS won’t pay the ex-spouse, then the retiree will have to make monthly direct payments.
The 20/20 Rule
The Military also provides certain benefits, such as medical, commissary, exchange, and theater privileges under the Morale, Welfare, and Recreation program for un-remarried former spouses who meet the requirements of the 20/20/20 rule. The so-called “20/20 Spouse.”
This rule states that the former spouse must have been married to the military member for at least 20 years, the military member must have performed at least 20 years of creditable service, and the marriage must have overlapped with at least 20 years of the member’s retirement-creditable service. The USFSPA also outlines eligibility for TRICARE medical coverage for former spouses under certain conditions.
Impact on Military Benefits
When undergoing a divorce, questions about military benefits often arise. Even if the 20/20/20 rule isn’t met, the military member retains their benefits until the divorce concludes. However, there are other considerations, such as potential changes to base housing or the logistics of a spouse returning from an overseas posting.
VA Disability Payments: A Closer Look
VA disability payments are a significant topic in military divorces. They aren’t taxable and aren’t divided in a divorce. However, they can play a role in determining child support and alimony amounts. So, while VA disability payments remain intact, they can influence other financial aspects of the divorce.
VA Disability and Employment
Having a VA disability rating doesn’t equate to being unfit for work. The rating focuses more on medical conditions than wage replacement. Many veterans, despite having a disability rating, continue to excel in their careers.
In Conclusion
Military divorces come with their unique set of challenges, especially concerning VA disability payments. While these payments aren’t divided, they can impact child support and alimony. If you’re in this situation, seeking legal advice is paramount. With the expertise of professionals like Gary Port and George Sava, both with Army JAG backgrounds, you’ll be well-equipped to navigate the process.
Call us at (516) 352-2999 for a free 15 minute telephone consultation.
