With almost three million active Service Members and reservists in the U.S., as well as many military veterans, military issues are often prevalent in divorce cases. While a divorce involving an active, reserve, or retired military member may present some unique challenges, the military offers protections for both the member and the member’s spouse in order to facilitate the process.
For example, the Service Members Civil Relief Act provides that divorce proceedings may be stayed during periods of active duty and for 60 days thereafter. A military spouse cannot be held in default for failing to appear to answer divorce proceedings during this time. A divorce can, however, both be filed and actively proceed while one or both spouses is on active duty, as long as both parties consent to the jurisdiction of the Court.
In addition, any divorce decree that provides for a continuing support obligation, whether in maintenance or child support, can be enforced by the military as an order from a superior officer. In other words, the failure to comply with the decree by neglecting to make maintenance and/or child support payments is not only punishable by the presiding court, but also would be punishable within the structure of the military as a failure to obey an order. Military wages may be garnished up to 60% of the Service Members pay plus allowances. Upon the filing of a proper Income Withholding Order with the Defense Finance and Accounting Service by the collecting spouse, the service member’s wages would be directly garnished to comply with any such payment obligation.
When a divorce action deals with a retired service member, the military’s retirement pay structure has its own unique elements that must be considered. This is due to the fact that it does not operate as a traditional pension or savings plan would, but continues as a form of income for the service member, known as (or referred to as) “retirement pay”. However, retirement pay may still be divided in the event of a divorce even if the service member is not yet in retired pay status. The Uniformed Services Former Spouses’ Protection Act provides that state courts have the jurisdiction to divide military pensions as long as the service member consents to jurisdiction, or maintains his/her legal residence in that state. (Note—a service member does NOT necessarily maintain legal residence in the state in which they happen to be stationed). In the event of a long term marriage (over 10 years) during which there were at least 10 years of creditable military service, the Defense Finance Accounting Service will pay the former spouse directly. A state court may still divide the retirement pay of a service member who does not qualify for the “10/10” rule, but the spouse will be paid directly, and not through DFAS.
Some former server members may attempt to take advantage of a military policy (which is specifically available to service member’s injured in combat) by seeking to reclassify some or all of his/her retirement pay as disability income in order to reduce a support obligation, otherwise known as a “VA Waiver”. The VA Waiver service member income that is protected by a statutory provision limits the amount of pay which is attachable for distribution for purposes of maintenance or child support if any portion of the veteran’s pay becomes reclassified as disability pay, i.e. a “VA Waiver”. However, this VA Waiver in no way prevents the ability of parties to a divorce to contract as they see fit for the payment of military retirement benefits to a military spouse if the Judgment is written clearly. A veteran benefits from receiving a portion of his or her military retirement pay as disability pay, in that same is not taxable to the veteran nor is it divisible under a Military Court Order (MCO). If the VA Waiver allows the former service member to receive this additional benefit, then he/she may keep same as his/her sole and separate property. Whether you are the Veteran or the former spouse, the impact of disability income should be discussed with your attorney.
All of these issues are important to address in the divorce decree itself. Because of these and other challenges in military divorce cases, any service member or spouse considering a divorce should consult with a lawyer. Gwendolyn J. Sterk and the Family Law Group are happy to help navigate this complex path.
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