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Frequently Asked Questions: Military Divorce

If you are a military member or if you are married to one, it is likely that you have a lot of questions concerning military family law. At Cutter & Lax, we know how complex this can be and we are prepared to do everything possible to ensure that your rights are protected. Below, we explain and answer some of the most commonly asked questions regarding military family law. If you'd like to learn more, give us a call.

I'm retiredcan my pension be divided & given to me ex-spouse?
The marital portion of your pension can be awarded to your ex-spouse, but only the portion that you earned during the duration of the marriage. If you earned any more pension after the marriage was over, this is considered separate property and solely belong to the military member. Also, the law only permits for 50 percent of the pension to be divided and awarded to the other spouse.

Where should I file for divorce?
There are three primary options for military families when looking to file. You can file where you are stationed (even if you are not a legal resident), where the spouse resides or where the military member holds legal residency. Any of these are viable options for places you are permitted to file.

What is the USFSPA? How does it affect my family law case?
The Uniformed Services Former Spouses' Protection Act (USFSPA) is a law passed in 1982, which can be found under 10 USC 1408. This law allowed for two separate things to be accomplished. First, the USFPA recognizes the ability of state courts to distribute military disposable retired pay to a current or former spouse. Second, it allows for a method of enforcement to be pursued through the Department of Defense. It, however, should be noted that the USFPA does not automatically award a military member's retired pay to a former spouse; it is not an entitlement. Rather, if a former spouse of a military member was awarded a portion of the member's retired pay in the final court order, it can be enforced under the USFPA.

Will I be able to keep my military ID card after a divorce?
There is no simple answer to this question; rather, the answer will depend wholly on how long the marriage lasted, how long the servicemember was in the military, and how long you were married during the course of the military service. One common misconception is that it is the choice of the military "sponsor" as to whether or not the spouse can keep their military ID card. This is not true. ID cards are an entitlement that falls under congressional law; it is up to Congress as who can and cannot have them. If you are getting a divorce and your spouse tries to take your military ID card away, it could even be considered larceny.

That being said, the former spouse of a servicemember will most likely lose his or her ID card, but not always. There are certain exceptions to this rule; for example, if a former spouse is not married, was married to the servicemember for at least 30 years, the servicemember had performed at least 20 years of service, and there was a minimum of a 20 years overlap between years married and the military service, it could fall under the 20/20/20 rule. Under this rule, the former spouse may be eligible for full benefits.

I've heard about the 30/20/20 rule, but what is the 20/20/15 rule?
The 30/20/20 rule, explained above, dictates who is eligible to receive full medical benefits following a military divorce. In some situations, however, there are those who do not meet the 20/20/20 requirements who still may be eligible to receive some form of medical benefits. This is where the 20/20/15 rule becomes applicable. Under this law, a former spouse could potentially qualify for medical benefits for one year following the divorce, so long as the following qualifications are fully satisfied:

  • Parties were married for at least 30 years;
  • The servicemember performed at least 30 years of service creditable for retirement pay; and
  • The marriage had at least a 15 year overlap with the time of military service.

My spouse is serving overseas—do I need to wait to file?
Not at all! Even if your spouse is stationed in another country, you do not need to wait until they return to file for divorce. That being said, the long-distance can cause complications in the process. In some cases, military authorities will be requested to serve the servicemember. Should the servicemember refuse the service, the next step would be to request the court to service the member. This, however, can get tricky because there are few courts that are going to send someone internationally to serve the servicemember. In these cases, you may be forced to wait until they return for the divorce to proceed.

How does military service affect child custody issues?
If a military member is deployed to serve overseas, it is likely that the courts will award temporary custody to the other parent. This, however, can often turn into permanent custody as the courts believe it can often be in the best interest of the child. While a military member can request a stay under the Servicemembers Civil Relief Act (SCRA), this is not always honored in lieu of protecting the child's best interests.

What factors are considered in awarding child custody?
When looking to award custody to one parent or the other, courts will above everything else look to honor what is known as the best interests of the child. They will also take into consideration the child's preference, the ability & willingness of the parents, as well as their stability. Other factors will include the possibility of previous and current occurrences of domestic violence occurring.

Contact Military Family Lawyers, Cutter & Lax

Have more questions? To get the answers that you deserve, simply pick up the phone and contact an attorney from the legal team at Cutter & Lax. With more than two decades of experience, our firm knows what it takes in complex family law cases. Learn more about how we can help by contacting us today. You can schedule an initial case consultation by picking up the phone and calling 800-606-2056.

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