Military divorces are much different than civilian divorces. The differences include difficulties in deciding where to file, child support, and pension. However, there are also different legislations as the USFSPA when it comes to divorces in the military. Here are two of the most important acts for military divorce.
The Uniformed Services Former Spouses Protection Act
The Uniformed Services Former Spouses Protection Act was passed in 1982 in order to offer some benefits to former spouses of servicemembers. It allows the state to divide retired pay, as well as allow the civilian spouse to obtain medical care and other benefits as long as they remain un-remarried.
Under this act, the only way for a civilian spouse to receive these benefits is under the 10/10/10 rule, the 20/20/20 rule, or the 20/20/15. The first number is for the length of the marriage in years, the second number being the years served, and the third number is the years that they overlapped.
For example, the 10/10/10 rule requires that the couple be married for at least 10 years, the military member must have been in service for 10 years, and that those 10 years must have overlapped. This is when the government will begin paying out the civilian member’s retirement pay.
The 20/20/20 rule is the same as the previous, but with added benefits. Under this rule, the civilian member receives access to retirement benefits, medical care for life, as well as base privileges.
Some applicants may be eligible for coverage even without meeting the full 20/20/20 rule requirements. There is an additional rule under this act, called the 20/20/15 rule. This only offers Tricare medical coverage for a limited amount of time. The 20/20/15 rule requires that the marriage lasts 20 years and the service member serves for 20 years, but they only have to overlap for 15 years.
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The Servicemembers Civil Relief Act
While the Uniformed Services Former Spouses Protection Act serves to protect former spouses of a military member, the Servicemembers Civil Relief Act protects the servicemembers. This act is meant to prevent a member of the military from being taken advantage of while on active duty. This includes foreclosures, eviction, and being taken to court for divorce proceedings.
This means that no civil court proceedings can be brought against an active member of the military while on active duty, or 90 days after being deployed. This helps prevent default judgments against servicemembers.
Can Former Spouses Of Retired Service Members Get Alimony Or Child Support From Their Spouse’s Pay Directly?
Yes! However, spouses of retired service members must first secure a court order requiring payment of alimony or child support to receive payment directly. What’s more, court orders don’t have to explicitly state that such an award should be made directly from retired pay.
However, court orders and other applicable documentation served alongside court orders need to explicitly state the military member in question and his/her SSN (Social Security No.), if possible. According to the law, retired military members risk losing up to 65% of their retired pay to child support and alimony.
It is highly fundamental to keep in mind that the 20/20/20 rule is separate from what happens in divorce court. The military spouses affected by this rule can still be required to legally settle all matters related to assets, retirement, and child support, in a court of law or with legally binding agreements that address all pertinent areas not covered by the 20/20/20 rule.
In addition, all of the related issues on the benefits offered to qualify former military spouses are dependent on having a legally recognized divorce sentence. These benefits do not mention separations, trial separations, or other non-divorce living situations.
Should A Former Spouse Of A Military Member Wait Until Their Former Husband/Wife Retires In Order To Get A Share Of Their Retired Pay?
The USFSPA stops state courts from forcing military members into retirement for the sole purpose of dividing their pension with ex-spouses who qualify for alimony and/or child support. In some states, payment can be made via a court order while a service member remains on active duty. Some states don’t allow this and instead allow the PV (present value) of a service member’s pension to be utilized for trading against or setting off other property that a non-service spouse is entitled to receive.
In simple terms, the marital residence can be used in the place of retired pay when the value of both is approximately the same. If the value isn’t the same, regular payments can be ordered until the value matches.
You need a seasoned divorce attorney in Alabama to find out exactly what happens in this and other scenarios.
How Much Of The Pension (Retired Pay) Will A Non-Military Former Spouse Get?
Courts divide the portion earned during a marriage (before separation). Pension earned before marriage or after separation isn’t divided. As per federal law, non-military spouses can’t get over 50% of the pension that is sharable. While some states have a 50/50 rule on a marital property which can include retirement rights, you need a divorce attorney to advise you accordingly on what is applicable in your state. A legal professional can ensure a person gets what is deserved which could be over 50%.
What Happens To My Pension Award If I Die?
If you are entitled to a portion of the income of your former service member and you pass on, the rights, under USFSPA, end upon death. Your estate, heirs, or survivors can’t claim or receive such benefits.
What Happens If My Ex-Spouse Dies. Will I Continue Receiving Benefits?
It depends. As per federal law, the person getting an award stops getting any more pension division payments on a service member’s death.
However, there are exceptions to this rule. Continued payment can be allowed to former non-military spouses under the SBP (Survivor Benefit Plan). However, the amount may differ. Also, a court may require proof of SBP coverage for a non-service spouse.
What’s more, orders should be served on the Defense Finance & Accounting Service) a year after divorce; otherwise, payments after a service member’s death won’t be honored.
What Is The Maximum A Non-Service Spouse Can Get Under The USFSPA?
Generally, pension awards are capped at 50% of the service member’s pension (disposable retired pay). However, the award can be more (up to 65%) if child support and/or alimony orders are issued against a member. Some exceptions can also apply when there are many court orders involving more than one ex-spouse.
How To Ensure Full Benefits
Individuals who pass the 20/20/20 test can get full benefits. In the test, you must have married a service member for 20 years or more. The service member also needs to have done credible service for 20 years or more. There also needs to be an overlap of 20 or more years (i.e., the date of marriage to date of divorce is 20 or more years).
USFSPA & Dependent Abuse
A spouse/former spouse has a right to retired pay lost as a result of a member’s misconduct involving dependent abuse. Thus, when a retirement-eligible service member receives a punitive discharge by court-martial for dependent-abuse offense(s) and his/her eligibility to retired pay is terminated as a result of that misconduct, a spouse or former spouse may still be able to receive payments from retired pay that the member would have been entitled to “but for” the misconduct.
Only victim-spouses who were married to the military member for at least ten years while the member was performing military service creditable for retirement will be eligible for direct payment of a portion of retired pay. This is the “10/10 spouse” criterion that is required for direct payments of a portion of retired pay. If the victim-spouse is not a 10/10 spouse, he/she is ineligible to receive direct payment.
The USFSPA is a complicated piece of legislation that needs to be interpreted by a seasoned divorce lawyer with in-depth knowledge about military divorce issues and state laws that can affect military divorce matters. Attempting to handle USFSPA without legal assistance can result in serious mistakes.
An experienced divorce attorney will also advise on related legislation, increasing your chances of making an informed decision.
If you are looking into getting a divorce, you want someone who is going to be on your side. Connect with us at Summit Family Law Firm by phone at (256) 769-0508, or online at charlottechristianlaw.com to find an attorney that will go to bat for you both in and out of court. We will advocate for you.
No representation is made that the quality of legal services to be performed by Summit Family Law is greater than the quality of legal services performed by other lawyers.
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