Military Divorce Lawyer in Athens and Huntsville, AL
Military Divorce Support
Military divorce cases tend to be more complicated than civilian divorces cases. Jurisdiction is a threshold issue, so a primary contention is achieving jurisdiction over the service member, the military pension, child custody, and child support. Federal and State laws will impact these areas.
Subject Matter Jurisdiction in Alabama Military Divorces
To get a military divorce in Alabama, a member of the U.S. armed services or his or her spouse must be an Alabama resident for a period of at least six months prior to filing the complaint in the military divorce action, which must be alleged in the complaint and proved.
Subject Matter Jurisdiction to Divide Military Retirement
In 1982 the federal government enacted the Uniformed Services Former Spouses Protection Act (USFSPA), codified at 10 U.S. § 1408(a), authorizing State Courts to divide military retirement accounts upon divorce, legal separation or annulment. Note: the USFSPA authorizes, but does not require, State Courts to divide military retirement upon divorce, legal separation or annulment.
To divide Military Retirement, USFSPA requires that State Courts must have personal jurisdiction over the service member by consent or by legal residence in the State. Simply being stationed in Alabama on military assignment, even when personally served with divorce paperwork in Alabama, is not enough.
This jurisdictional requirement means that if the service member moves to Alabama only because of military assignment and does not intend to reside in Alabama after his or her military service, the Alabama Courts will not have jurisdiction over the pension unless the service member consents to jurisdiction. The Service member’s State of residence is usually the State indicated on his or her Leave and Earnings Statement or pay statement.
A 10-year marriage is not required
The military retirement is a marital asset, subject to division at the time of the divorce or legal separation regardless of the length of the marriage. The payments will not commence until the service member retires from the military and receives retirement.
Nowhere is the Court’s authority to divide military retirement limited by the length of the marriage. Many people, including a surprising number of family law attorneys, believe that military retirement is only divisible if the marriage lasted ten years, and all ten years of the marriage overlapped ten years of creditable military service (the “10/10 rule”).
USFSPA states that the Defense Finance and Accounting Service (DFAS) will pay the former spouse’s share of the military retirement directly only if there were at least ten years of marriage overlapping ten years of creditable military service (the “10/10 rule”). 10 U.S. Code § 1408(d)(2). In other words, ten years of marriage and military overlap means garnishment.
In truth, State Courts divide military retirement for couples with fewer than ten years of marriage all the time. In this situation, the service member must cut the check to pay the civilian spouse, rather than DFAS making those payments directly.
Survivor Benefit Plan (SBP)
The SBP is like an insurance policy focused on protecting a survivor’s income flow from the military retirement if the retiree dies first. It has a premium and a payout in the form of monthly payments from DFAS.
Without SBP, if the retiree dies, the military retirement stops as well. However, to protect a former surviving spouse’s share of the military retirement, family courts can require a service member to elect former spouse SBP coverage.
Since the retiree can only have one primary beneficiary, one effect of Court ordered SBP coverage for a former spouse is that if a service member remarries, the new spouse or children are precluded from coverage. Occasionally, a former spouse may give up the SBP in return for something else, such as life insurance, so that the service member or retiree can retain the benefit for a possible future spouse.
If an award of SBP coverage is obtained in the divorce, the former military spouse must comply with DFAS deadlines for submitting the Order to them.
The submission is done with a “deemed election” request letter. “Former spouse” coverage must be specified in the Order; merely naming the former spouse as the SBP beneficiary is not enough.
Thrift Savings Plan (TSP)
The military also offers a TSP, which is a “defined contribution” plan similar to an employer-sponsored 401(K) plan. With the new Blended Retirement System, the TSP now receives matching funds from the military and partially replaces some of the value of the traditional military pension.
The TSP is a divisible asset in a divorce or legal separation.
VA Disability Payments
A member’s disability payments from the Veterans Administration are not marital property and, therefore, not a divisible asset in a divorce.
However, VA disability payments do count as income for purposes of calculating child support and maintenance.
Military Medical Benefits After Divorce
Military medical benefits are not a divisible asset.
After divorce, the former spouse is entitled to the Continued Health Care Benefit Program (CHCBP), which is the Tricare version of “COBRA” for three years. And as long as the spouse remains unmarried and was also awarded a share of the military retirement or SBP, the former spouse may remain on CHCBP for life.
20/20/20 Benefits. If the parties were married for at least 20 years, the military member served 20 years, and there were at least 20 years of overlap, then an un-remarried former spouse is a “20/20/20” spouse, entitled to Tricare health just as if the parties were still married.
20/20/15 Benefits. If the parties were married at least 20 years and the military member served 20 years at the time of divorce, but there were only 15 years of overlap, the former spouse is entitled to 1 year of transitional medical (i.e. Tricare) benefits only.
Jurisdiction Over Child Custody
The UCCJEA is the Law that typically relates to child custody when parents live in different states or countries. Jurisdiction over a child is in the State where the child is a resident and where he or she has been physically located for the last six months.