Many divorces can be tremendously tiring, difficult, and emotional. However, when a couple divorces and either party is a member of the military, the divorce likely will involve a number of special issues. Individuals who do not have a knowledgeable divorce attorney who is well versed in the unique issues military families face can produce a disastrous result.
With that being said, it is imperative for military families facing divorce to employ an attorney who has a thorough understanding of the many complex issues that parties encounter in a military divorce. Without the help of an experienced and knowledgeable military divorce attorney like the attorneys at Morgan & Barbary, a party involved in a military divorce might not receive a fair outcome or be able to develop better decisions when facing the complex issues in a military divorce. Above all, it is important to always keep in mind that a military divorce is very unique and should not be taken lightly – the additional legal issues that encompass military divorces makes it critical that either spouse seeks the advice of an attorney who understands the complexities of military divorces. At Morgan & Barbary, P.A., we have attorneys who have extensive experience in military divorce and other military family issues that would be glad to help you through any issues you are facing or could potentially face.
Some potential issues military divorces encounter include the following:
Ordinarily, the Florida Rules of Civil Procedure provide that when a party “serves” their spouse with divorce papers, the spouse who has been served with the divorce papers has 20 days to respond or face the possibility of a default being entered against them. However, this is not always the case due to the Servicemembers Civil Relief Act (SCRA).
There are three primary areas of coverage under the SCRA: (1) protection against the entry of default judgments; (2) stay of proceedings where the servicemember has notice of the proceeding; and (3) stay or vacation of execution of judgments, attachments and garnishments. 50 U.S.C. app. 521, 522 and 524.
In the context of a military divorce, the SCRA allows active duty servicemembers to formally request the court the divorce is filed in to put on hold, delay, or in other words, “stay” the divorce from moving forward because of the prejudice they would incur from having to respond within the normal timeframes and deadlines governed by the Florida Rules of Civil Procedure. A spouse who has been served with divorce papers during active duty must make a written request to the court.
The SCRA provides that servicemember are permitted to have the divorce proceedings put on hold for a period of at least 90 days. After the initial stay requested by the servicemember, the court can grant subsequent extensions for a reasonable period of time but not indefinitely.
While serving in the military, the servicemember spouse and their dependents (generally the spouse and children) are provided health and dental insurance by the military for free (with some exceptions). This is a tremendous benefit the non-servicemember, which is why it is most often beneficial for the servicemember to carry health insurance on the minor children post-divorce.
For military spouses, the type of healthcare benefits offered by the military generally depends on the number of year of service.
Full Healthcare Coverage: The type of healthcare benefits is identical coverage the servicemember will receive under TRICARE. In order to receive this coverage, one spouse must have been in the military for at least 20 years and simultaneously be married during this active duty service. This is sometimes called the 20/20/20 rule. The 20/20/20 rule stands for 20 years of marriage, 20 years of service, and 20 years of overlap. If a non-servicemember is close to qualifying for the 20/20/20 healthcare and ancillary benefits (commissary and exchange benefits), that spouse should seriously consider staying in the marriage to obtain these benefits. **These benefits, however, are contingent on the possibility of the former spouse remarrying before reaching age 55. In the event the former spouse is receiving the benefits of the 20/20/20 rule and subsequently remarries after divorcing the servicemember, the former spouse will permanently lose the 20/20/20 healthcare coverage and ancillary benefits.
Conversion Health Care Coverage/Continued Health Care Benefit Program (CHCBP): A former non-military spouse who is not eligible for the full TRICARE healthcare coverage is given the opportunity to buy conversion health coverage through the government post-divorce – also known as the Continued Health Care Benefit Program (CHCBP). This health program requires you to pay a premium to participate and it provides temporary health care coverage for up to 36 months so long as you enroll within 60 days of losing full military health care benefits.
Transitional Health Coverage: is available where the service member served 20 years of creditable service, the marriage lasted 20 years, BUT the period of the marriage overlapping the period of service was only 15 -19 years (a.k.a. 20/20/15). In this circumstance, the military spouse is entitled to full military medical benefits (so long as they do not remarry during or enroll in an employer-sponsored health insurance plan) only for a transitional period and thereafter the spouse may purchase a DOD-negotiated conversion health policy.
Servicemembers have the option to contribute funds as a retirement investment vehicle called a Thrift Savings Plan (TSP) during their active duty military service. The TSP is a retirement savings plan, much like a 401(k) plan or an IRA. Thrift Savings Plans are subject to equitable distribution and the account is subject to being divided by the court upon divorce. While negotiating a potential settlement in a divorce, a parties’ TSP is a major factor the parties’ should be aware of and should be able to have current TSP statements and other information about the value of the TSP at the time of the divorce.
It should be noted that Thrift Savings Plans are not subject to ERISA (Employee Retirement Income Security Act of 1974) and as such, are not divided by a Qualified Domestic Relations Order (QDRO), instead, a TSP has a unique process of division as provided by the government. These orders to divide a servicemember’s TSP are called a “Retirement Benefits Court Order” and are governed by the United States Office of Personnel Management. It is very important that neither party forget or disregard a TSP when going through a divorce and should pay careful attention to ensure that you are protecting your rights in equitably dividing this asset.
One of the most contentious points in a divorce is the issue of the Survivor Benefit Plan. Along with its associated contentious aspects, the Survivor Benefit Plan also can be quite complex.
Ordinarily, when a military retiree dies, their monthly military retirement pay stops. However, if the retired servicemember elected to buy a death benefit for a spouse or child in the event of the servicemember’s untimely demise, the servicemember can pay for what is called a “Survivor Benefit Plan” (SBP). If the SBP is elected, the servicemember names a beneficiary who will receive a certain percentage of the servicemember’s monthly retirement pay after the servicemember dies. If the servicemember does not elect to have SBP coverage, then the pension/retirement pay will conclude upon the servicemember’s death. The servicemember will be required to choose a “base amount” which can be any dollar amount between a minimum of $300.00 to full gross retired pay (100%). The maximum amount the SBP can pay out to a beneficiary upon the servicemember’s death is 55% of the base amount elected by the servicemember.
Survivor Benefit Plan coverage is not free and must be affirmatively elected upon retiring from the military. The retired servicemember who elects for SBP coverage will incur a monthly premium or fee is equal to 6.5% of the base amount. These premiums are automatically deducted by the Defense Finance and Accounting Service (DFAS) and is reflected in the servicemember’s monthly retirement check. If the service member does not specify a “base amount,” then DFAS will deem the base amount to be the full retired pay. The retired servicemember does not make any further payments once a retiree has made 360 payments (30 years) and reached age 70.
In the context of a divorce, the court can require SBP coverage by a retired servicemember. If a servicemember elects Former Spouse coverage following a divorce, the servicemember cannot then go and change coverage back to a current spouse, even if the designated former spouse dies before the servicemember. The only option available to change Former Spouse coverage is while the designated former spouse is still living and if they provide consent, or if it is mandated by a court order.
The deadline for an election by the service member is one (1) year from the entry of a court order dissolving the marriage and finalizing the divorce. DFAS must receive the required form within this one year period.
An SBP can name only one beneficiary – therefore a retired servicemember is prohibited from having both a former spouse and current spouse as beneficiaries simultaneously. However, it is important to note that the benefit will conclude in the event the former spouse dies or in the event the former spouse remarries before the age of 55. It is worthy to note that if the former spouse remarries before reaches age 55, the benefit will only be suspended and can be resumed if the remarriage ends.
Like other pensions, military pensions earned during the marriage are an asset of the marriage and should be equitably divided among the two spouses.
Whether the parties have been together for 3 years or 30 years, the court still maintains the authority to provide the other party a share of a military pension. The number of years the parties have been married only affects amount, not entitlement.
If a marriage lasts less than 10 years, DFAS will not automatically divide the monthly pension check in conformity with a court order or divorce decree. Instead, for marriages that where the parties were married for at least 10 years while the military spouse was on active duty (or doing “creditable service” in the Guard or Reserves), the servicemember is assigned the obligation of making monthly payments to the former spouse. However, if the marriage lasted at least 10 years while either spouse was on active duty, DFAS will automatically garnish the portion of the pension that is ordered by the court pursuant to divorce decree.
Uniformed Services Former Spouses’ Protection Act (USFSPA) governs military retirement pensions. The USFSPA limits a state court’s award or division of a military pension to no more than fifty percent (50%) of “disposable retired pay.” The Act provides for a number of other policies when dealing with a military pension and is important to know when approaching the division of a military pension in a divorce.
An involuntary relocation of either parent pursuant to PCS orders is oftentimes expected by a servicemember, but is also very difficult on all of the parties and children involved. Due to the nature of a PCS order and not being able to have full control over where you might be relocated, the existing time-sharing or custody schedule could result in the parties being unable to effectuate the previous custody arrangement or time-sharing schedule without undue hardship.
In the event you are being relocated to another military base, you need to act quickly in adjusting your current time-sharing arrangement. Ideally, if two parties can agree on a feasible time-sharing arrangement then the parties should enter into a written settlement reflecting the agreement reached between the parties. If not, you must act quickly and file with the court a modification action requesting the court to allow you to relocate with your minor child or children and for the court to adjust your time-sharing schedule in order to accommodate your new location. Florida Statute 61.13001 states that the court must hear your temporary relocation requests within thirty (30) days of filing for a relocation action and provide a final hearing on the relocation action within 90 days of filing the matter with the Court.
Regardless if you are moving pursuant to PCS orders or simply voluntarily moving, the standard used by Florida courts are the same. Florida Statute 61.13001 provides that any parent wishing to relocate a child or children has the burden of proving by a preponderance of the evidence that the proposed relocation is in the best interest of the child or children. If that burden of proof is met by the parent who desires to relocate and shows that the move would be in the best interest of the minor child or children, the burden then shifts to the objecting/non-relocating parent to show in rebuttal by a preponderance of the evidence that the proposed relocation is not in the best interest of the child or children.
If you are facing a divorce and you and/or your spouse have a military component involved, it is extremely important that you are represented by an attorney who is well versed in the area of military divorces. A military divorce is not the same as a civilian divorce and involves several complex legal issues that many attorneys are unaware of and therefore end up losing their clients many rights that they should have been able to obtain.
The unique issues that arise with a military divorce demands that you have an experienced and knowledgeable military divorce attorney to represent your interests. If you are a member of the military or married to a member of the military, call the law office of M&B Family Law & Mediation Services at 855-951-3400.