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Divorcing the Military Spouse

Where do I file for divorce?

Legal residence, or “domicile,” which is defined as “residency plus intent to remain,” determines where you may file for divorce or related proceedings such as equitable distribution of property or property division. Your lawyer will assess the domicile question by looking at what contacts and connections you have with a particular state or territory. These include your driver’s license, mailing address, voter registration, vehicle registrations, passport, any other ID cards or permits, taxes, or a government form if and as appropriate (e.g., Florida has a declaration of domicile form). The military’s term, “Home of Record,” is not necessarily the same as the servicemember’s domicile; therefore, it is important to examine in detail the domicile of the servicemember and his or her spouse. It may be helpful for the lawyer to use a questionnaire for questions of domicile.

What does it take for a state to have jurisdiction to divide a military pension between divorcing spouses?

The question of how and where to divide a military pension—also known as “military retired pay”—is not easy to answer. Where to file, for example, is based upon federal law. A state has jurisdiction to divide the military pension if: 1) the servicemember is a legal resident of the state; 2) the servicemember is residing in that state for reasons other than because of a military assignment; or 3) the servicemember consents to the jurisdiction of that state’s courts over the division of the pension. If none of these apply, then the state’s courts cannot divide the military pension.

I have filed for divorce and my spouse is in the military. Can he or she take away my military ID card while the case is pending?

The military card and its associated privileges are granted by the U.S. government, not the servicemember spouse. The servicemember does not have the right to take the ID card away because only the U.S. government has that authority. In some circumstances, the base personnel office may issue an ID card without the servicemember’s direct consent.

Can I keep my military ID and privileges after the divorce is final?

An un-remarried former spouse may retain the military ID card if he or she meets the 20/20/20 rule. The 20/20/20 rule requires at least twenty years of marriage, at least twenty years of military service, and at least twenty years of overlap of the marriage and the military service.

I almost meet the time requirements for continued military privileges and an ID card. Can I get an exemption or a partial entitlement?

A partial entitlement is only available in limited circumstances. A spouse is entitled to one year of transitional medical benefits under the 20/20/15 rule, which requires at least twenty years of marriage, at least twenty years of military service, and at least fifteen years of overlap of the marriage and the military service. The other circumstance under which you can get an exemption or partial entitlement would be one in which you were divorced from a servicemember whose eligibility to receive retired pay terminated because of domestic abuse.

Because these exceptions are limited, we usually recommend a strategic approach to delaying the divorce so long as it can be done legally and ethically. For example, if a servicemember sues for divorce in another state, a spouse could engage in “discovery”—that is, formal, legal requests for information pertinent to the divorce proceedings—to investigate the issue of domicile. This is ethically appropriate because it is not done solely for the purpose of delay, but it could also have the effect of buying time for the spouse to try to meet the 20/20/20 rule. The benefits that may be lost can be quite valuable, and therefore it may be wise to consult an expert in the field such as a JAG officer or military divorce practitioner to assist you or your lawyer.

I qualify for continued military ID privileges after my divorce. What happens if I want to get remarried?

The remarriage will terminate the military ID privileges. Military regulations are clear that remarriage means that a spouse loses the military ID card and associated privileges (e.g. commissary and base exchange shopping). A remarried spouse should also turn in his or her military ID because it is federal property and the spouse would no longer be the rightful owner.

I heard that the law doesn’t allow division of some military-related benefits. Is that true?

The law only allows division of “disposable retired pay,” which means the full military pension minus certain deductions. VA disability compensation is not a part of the military pension, and a court, therefore, cannot divide it between divorcing spouses as it could divide, for example, bank accounts and IRAs. Also exempt from division are Combat-Related Special Compensation (CRSC) and most military disability retired pay. If a servicemember receives any of those types of pay, the former spouse’s portion of the military pension would be reduced. However, a court could award a portion of these types of compensation for child support, alimony, or other types of family support (rather than treat it as a property division between spouses.)

Outside of these exceptions, however, the law allows courts to divide a servicemember’s disposable retired pay. Attorneys may wish to consult Silent Partner, a lawyer-to-lawyer resource for military legal assistance attorneys and civilian lawyers published by the Military Committee of the American Bar Association’s Family Law Section. See, for example, Military Pension Division: “The Evil Twins”CRDP and CRSC. The best practical advice for this situation is to find an experienced lawyer who knows this area of law backwards and forwards or to make sure your lawyer partners with an experienced co-counsel.

We were married less than ten years. Does that mean I cannot share in my spouse’s military pension?

State law determines how and to what extent a military pension is a marital or community property asset divisible upon divorce. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), the 10/10 rule governs the method of payment. At least ten years of marriage overlapping at least ten years of military service is needed for direct payment from the retired pay center, usually the Defense Finance and Accounting Service (DFAS). If the marriage does not meet the requirements of this rule, then the spouse may obtain a division of retired pay but not a direct payment from the pay center.

I want my share of my spouse’s military retirement paid to me directly by the military. Can that happen?

Yes, if the 10/10 rule (above) is met and there is disposable retired pay to divide. An appropriate order, submitted with the necessary documents to DFAS, will be needed. As a practical matter, the drafting and submission of a military pension order is complex and often best handled by an expert. The other method of direct payment is via an “allotment,” which is a sum of money distributed like a payroll deduction from the pay of military personnel. A former spouse would not prefer this method as it is subject to change by the servicemember without notice to the former spouse.

If the court order requires the servicemember to pay me more than the maximum allowed under USFSPA, does that mean I am just out of luck?

The USFSPA limits pension division awards to fifty percent of the member’s disposable retired pay, but the maximum may be as high as sixty-five percent if there are alimony and/or child support orders against the member as well. There are also certain exceptions in the event of multiple court orders involving different spouses.

State law controls whether the spouse may be entitled to more than the allowable share under federal law. If the spouse is entitled to more than what federal law allows, the spouse’s lawyer should consider other options, such as increasing the alimony award, requesting an unequal division of the marital estate, or seeking the difference in value compared to the maximum allowed from other marital assets. Ordinarily the court can only divide the “marital portion” of the pension, that is, what was earned during the marriage. The rest of the pension (that was earned outside the marriage) is separate, nondivisible property. The calculation may vary from state to state. For example, North Carolina law presumes an equal division of all marital property, including retirement rights. Other than this, there is no way of telling how much marital property will be awarded or how much of the pension will be granted to you.

If my military pay is garnished, how can I stop the garnishment?

A garnishment is based upon a court order. The only way to stop a garnishment is to obtain a court order that terminates it. State law determines whether this is possible and under what circumstances a court may step in and stop the garnishment.

My spouse is in the military. Can his or her pay be garnished to collect alimony or child support?

Military retired pay, and even military disability retired pay, may be collected for support with an appropriate garnishment order. Income-withholding from military retired pay is a useful tool in collecting support and enforcing court orders. While there are limitations on how much may be collected and rules regarding how to obtain information, the garnishment requirements and procedures are clearly set out in the Code of Federal Regulations and, for DFAS cases, in the Department of Defense Financial Management Regulation. When the retiree is receiving VA disability compensation, even that is subject to garnishment for family support.

How much of the military member’s pay can a court garnish?

The amount of garnishment is limited to fifty percent of the retiree’s disposable earnings if the retiree can prove that he or she is providing more than one-half of the support for family members other than those to whom the garnishment order pertains. Otherwise the maximum is sixty percent. An additional five percent may be withheld from the fifty percent or sixty percent if the arrearage is for twelve or more weeks.

I asked my ex’s commanding officer for a garnishment, and I got nowhere. What can I do?

A garnishment order should be entered by the court and provided to the appropriate office. For the Army, Navy, Marines, and Air Force, the DFAS is responsible for administering retired pay and garnishment. The U.S. Coast Guard, a component of the Department of Homeland Security, administers retired pay for the commissioned corps of the Public Health Service and the National Oceanic and Atmospheric Administration (both of which are considered “uniformed services” under federal law), as well as its own retirees, through its Pay and Personnel Center in Topeka, Kansas. Garnishment orders can be complex and create difficulty for even a seasoned practitioner. It may be advisable to find a “wingman” to draft the garnishment orders and handle submission to the pay center.

What information must I provide to the government to ensure that the garnishment is processed correctly?

The retired pay center will review it to be sure that it is regular on its face, appears to conform to the laws of the jurisdiction from which it was issued, was issued to enforce a member’s legal obligation to provide child support and/or alimony, and contains sufficient information to accurately identify the member (full name, date of birth, Social Security number, etc.). An order will not be honored if the garnishment notice or order:

 

  1. is for an impermissible purpose;
  2. was not properly served on the government;
  3. is barred because the government has been served with an order enjoining or suspending the garnishment order; or
  4. is being appealed and state law requires suspension of the garnishment pending appeal.

 

Federal law sets out which moneys are subject to garnishment and which are not. The most common elements of one’s pay and allowances that are exempt from garnishment are the Basic Allowance for Housing (BAH) and the Basic Allowance for Subsistence (BAS).

Can VA disability pay be divided in a divorce?

No. The law is clear on that, and Congress has spoken. The Uniformed Services Former Spouses’ Protection Act states that VA disability compensation payments are not subject to property division upon divorce. The same is true to a large extent with military disability retirement payments. Payments for the latter occur when a servicemember is declared unfit for duty.

I am a military member on active duty and have been served with divorce papers. I have no time to attend to the matter because of my military duties. What can I do?

The Servicemembers Civil Relief Act may provide some protection. The servicemember should first request a stay of the proceedings, and he or she may make additional stay requests later on. An application for an additional stay may be made at the time of the original request or later. If the court refuses to grant an additional stay, then the court must appoint counsel to represent the servicemember in the action or proceeding. The servicemember should confer with appointed counsel (or retain counsel) to discuss additional options.

Does the Servicemembers Civil Relief Act mean I can just ignore the divorce papers?

No. The servicemember should consult with his or her attorney and seek a “stay”—a temporary stoppage—of the case if appropriate. Note that the servicemember may have other legal remedies. A quick list would include a motion to dismiss the case or to challenge the other party’s right to bring the case in certain jurisdictions. It is important to note that some of these defenses may be waived by the servicemember if he or she participates in the case in any way. Therefore, the servicemember should consult with his or her attorney prior to taking any other action in the case.

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Mark E. Sullivan & Kristopher J. Hilscher

Law Offices of Mark E. Sullivan

Raleigh, NC