There’s an old saying from the US military: “If the Army wanted you to have a wife, they would have issued you one.” That saying of long ago now replaced “wife” with the word “spouse” as both women and men serve our nation across the globe in one of our six branches of military service (Army, Navy, Marine Corp, Air Force, Coast Guard, Merchant Marine, Space Force).
However, with that statement often comes the dreaded word “divorce.” The military didn’t issue you a divorce, but like any other occupation, the military seems to have a high percentage per capita of separation and divorce.
Family law practitioners in military communities face a barrage of different issues when it comes to separation and divorce. This short article will attempt to cover some of the critical areas family law attorneys should pay heed to.
The fact is that divorce law is state controlled and not governed by any particular federal or military statute, with exceptions dealing with Survivor Benefit Plan (SBP), Basic Allowance for Housing (BAH), Survivor Group Life Insurance (SGLI), TRICARE, and a few other matters that are clearly within the purview of the Department of Defense.
Military Family Support Regulations
Some branches of our military require the service member to pay to the dependent civilian spouse a portion or all of his/her BAH during the separation period, unless a service member meets the qualifications of not having to pay it. For example, Army Regulation 608-99 sets forth the parameters when a service member pays the BAH and when he or she is exempt. Each service is different, and in some cases, with a short-term marriage, it may not be worth the money to file lawsuits for spousal support when there is no guarantee what a judge will award for an ongoing monetary amount.
Service members qualify for term life insurance through the Survivor Group Life Insurance benefit, which currently has a death benefit up to $400,000.00 for an extremely low monthly cost. But here’s the kicker that a lot of family law practitioners don’t know about. The U.S. Supreme Court ruled in Hillman v. Maretta, 569 U.S. 483 (2013), that the beneficiary clause selection by the service member trumps state court actions, meaning essentially federal law can stop a state court judge from ordering the service member to designate the spouse as the beneficiary. One option may be for the family law attorney to petition the court to allow a spouse to purchase a life insurance policy on the other spouse and argue that the spouse has an insurance interest in the other, citing that if the military service member dies, there won’t be ongoing child support or ongoing spousal support to pay for the children’s needs and to pay the outstanding bills that have accrued during the marriage. This is something that family law practitioners in military divorce cases need to investigate to come up with solutions that pass legal muster.
The infamous Survivor Benefit Plan allows the future military retiree to designate his or her spouse as the beneficiary of the military retirement in the event of the retiree’s death. This benefit can award a former spouse up to 55 percent of the monthly retirement benefit (not disability rated). The main issue that has arisen is whether a state court can order the service member to elect his/her spouse or former spouse to be the SBP beneficiary. There have been some states that view the SBP as insurance and say no; others say it’s part of the property division with the pension and, therefore, yes. The rules are very technical in this area, especially with the retirement sections of the DOD and the deadlines to select what is called the “deemed elected SBP beneficiary”; missing those deadlines can be “deadly.” All family law practitioners should keep current on the DOD policies of the SBP and should at least file motions and conduct hearings to have their clients designated as the SBP beneficiary. Then, if the court issues an order, the family law attorney should ensure the proper documents are sent to the departments and/or agencies to effectuate this election as this is strictly regulated.
Health Insurance: TRICARE
Upon the divorce judgment being entered (filed), dependent spouses may be cut off from health insurance through TRICARE. Part of the planning in military divorces for your clients should include researching continuation of coverage or making the health insurance cost a part of the alimony portion of the case. From my experience, TRICARE has had a pretty good continuation-of-benefits program at a reasonable cost. However, at some point that insurance may end unless your client meets the qualifications for TRICARE for Life. When you lose TRICARE coverage, you may qualify for 180 days of transitional health coverage through the Transitional Assistance Management Program (TAMP). After TRICARE, TRICARE Young Adult (TYA), or TAMP ends, you may be able to purchase Continued Health Care Benefit Program (CHCBP) coverage and get an additional 18–36 months of coverage. The rules and regulations of these matters may change at any given time so it is also critical to keep abreast of the changes in federal laws as they apply to benefits for our service members and dependent family members, and in particular your client(s).
Being in the Fort Bragg, North Carolina, area for 28 years, I have litigated international child custody and child abduction as well as defended lawsuits from foreign countries along with co-counsel from the foreign country. This area can get really tricky. Dealing with custody issues where children have been taken to a foreign country requires detailed knowledge of how to navigate in matters of The Hague Conventions. There are many Hague Conventions dealing with private international law, in fact too many to cover here. But essentially, The Hague Convention dealing with child abduction is the method of returning a child or children to the proper jurisdiction that has authority over the child or children who are being held in contravention of a custody order issued from the proper jurisdiction. (Key to note here: In order to actually initiate a Hague action, you MUST file a lawsuit, not just merely contact the State Department or its equivalent.) The United States has codified into federal law (International Child Abduction Remedies Act, or ICARA, in 22 U.S.C. §§ 9001–9011) the mechanisms to enforce the Hague treaty dealing with this particular issue. Hague custody cases, for lack of a better term, are often litigated in federal court as it is a federal issue (i.e., treaty), but they can also be filed in state court. Most state court judges do not have the knowledge or experience to deal with Hague custody cases as, again, they are often litigated in federal court. To enforce the Hague treaty on child abduction, each country must be a signatory to the treaty, and hopefully the country from which you seek the return of your child(ren) has a history of compliance and cooperation.
The other common issue in military divorce is service of process on the other spouse. There is a Hague Treaty on Service Abroad of Judicial Documents, and some countries require you to serve the party through what is called the “Central Authority” and also translate each and every document into that country’s language. That can dramatically raise the costs and fees for your client. The good news is that there are professional companies that concentrate or specialize in service abroad of judicial documents and are making it easier to obtain service of process of your lawsuit. Failure to comply with the proper service of process under Hague Conventions could result in your judgments being set aside at a future date or not enforceable by a foreign country. And you certainly don’t want an absolute divorce to be set aside, especially if your client remarries. Ouch!
These are just a few of the many issues that will arise when practicing family law in military communities and with the world growing “smaller” by the day due to our communication abilities that, at any instant, will result in the rise of international litigation in this arena we call “love and marriage.”