Service Members & Family Law – Understanding Military Divorce

Whether active duty, reserve, or the spouse of a service member, you might not have the answers to the questions a stressful military divorce can raise. Though not legally distinct from a civilian divorce, property distribution and custody issues look a bit different. If you are having trouble finding answers to questions related to military divorce, read ahead to learn about:

  • Distributing Military Benefits and knowing who gets what (and how much), 
  • Setting up a future for your kids through a thoroughly prepared Family Care Plan, and
  • How a lawyer can help you best set yourself up for a strong future. 

Property Distribution with Benefits 

When approaching divorce, either as a service member or a spouse, it is important to know how to manage and distribute your property. Going in, though, be sure to keep a few things in mind: 

  • Military service is sometimes unpredictable; you may need to switch locations during the period of your divorce, which can put a strain on the process for you and your spouse. 
  • In military divorces, there are federal statutes in place to address issues of child support, spousal support, and pensions. 
  • Should you be on active duty, the Service-members Civil Relief Act (SCRA) protects you from civil suits—and divorce proceedings—for the extent of your deployment and up to 60 days afterwards. 

That being said, there are also a few rules to know specifically regarding property distribution: the 10 Year Rule and 20/20/20 Rule. 

The 10 Year Rule applies to direct retirement payments made through the Defense Finance and Accounting Service (DFAS). For an ex-spouse to receive payments post-divorce directly from DFAS, you must have been married for at least ten years overlapping with ten years of military service.  

If you do not meet these qualifications, it does not mean you are ineligible to receive retirement payments. The maximum amount of pension an ex-spouse can receive through DFAS is 50% of the retirement; depending on your marital situation, you may come up with criteria specific to your divorce agreement. 

In this, there are a few methods spouses use when calculating their share of marital assets

  • Net present value: immediate distribution to your ex-spouse based on a calculation of all present benefits;
  • Deferred distribution: a share amount is calculated at divorce, then deferred until the service member retires; and 
  • Reserve jurisdiction: a share amount for the ex-spouse is calculated upon retirement. 

On the other hand, the 20/20/20 Rule applies to TRICARE health benefits and other privileges. The rule states you may be eligible to receive benefits through TRICARE should you not remarry if three out of the following three provisions apply to you: 

  • You were married to your ex-spouse for at least 20 years; 
  • Your ex-spouse served in the military for at least 20 years; and
  • Your marriage overlapped the time in service by at least 20 years. 

There also exists a 20/20/15 Rule under TRICARE with the same terms, except the last includes an overlap of 15 years. Under this, you can collect benefits for up to 12 months after your divorce. 

You might have other benefits specific to your life and time in the military in need of division, as well; keep in mind, you can discuss how to report and account for these with a lawyer experienced in divorce, civilian and military. 

Family Care Plans and Their Importance 

As we recognized above, your living arrangements in the military could change at a moment’s notice. Parenting plans help former couples allot time between family care providers, your ex-spouse, and you in the event of short-and-long-term changes to living arrangements. 

Communication is key post-divorce. Though all are different, divorces have profound effects on children. With military service, it isn’t uncommon for one parent to be out of the house for an extended period of time, depending on the circumstance. Divorce can add a layer of distance between a child and their parent if there is less of a chance they will see them without having to travel far distances. 

The military, in most cases, requires service-members to submit family care plans to their commanding officer following a divorce. However, not every divorcing couple needs a family plan, except the following situations: 

  • A service member with a child under 19-years old shares custody with a partner, both unmarried; 
  • Both parents are service members with a child under 19; or
  • A service member is the sole caretaker for a child under 19 or an adult family member unable to provide care for themselves. 

In said plan, you must include a few essential pieces of information. 

First, list any caregivers who might care for your child in case of your absence. This person must be at least 21-years old and have all pertinent information on hand in preparation for future care. Something important to note is that you may need multiple caregivers to account for different situations—short and long-term caregivers. Also, be sure to include information about your child’s other parent—your ex-spouse, if applicable. 

Next, you need to account for both financial support and transportation as it relates to the child’s care during your absence. Another aspect to this is showing you have given powers of attorney to your caregiver. 

It is important to note there is a difference between guardianship and power of attorney; in the event of your incapacitation, the latter of the two will allow the caregiver of your choice to make important financial decisions for you and your child. This is a provision in place in the event of an extenuating circumstance that may arise during the period of a person’s service. 

Finally, be sure to include who you want to take custody of your child in the event of your death. If your ex-spouse is your child’s other legal parent, then they will take custody. However, you may designate another person along with your reasons for including them if you choose. 

Drafting up a plan of this nature may feel daunting, given how many important decisions it holds. However, taking as many precautions as you can in the present ensures your child’s safety and security in the future. As we have said in past articles on our blog, it’s best to work with your spouse as equitably as possible during this portion of the divorce process. Coming to an agreement on how to safeguard and care for your child can help dispel any stress from the uncertainty of divorce, while giving you the chance to work with your spouse rather than against. 

Your Attorney: Someone to Sort Out the Hard Details 

Divorce is hard. Do not do it alone. 

A skilled family lawyer or military divorce lawyer with a bevy of experience handling divorce cases is your key to a smooth transition to the next part of your life. 

Like we have said: process-wise, military and civilian divorce is very similar. However, when your benefits come into play, and you are unsure how to negotiate visitation, your lawyer is there to help. 

You might be familiar with the Judge Advocate Generals Corps, or JAG Corp. JAG attorneys often give general legal advice and represent military members in court-martials and other punishment proceedings; they cannot help you prepare divorce documents. Divorce is a state legal issue, not a military one. 

No fear, though: our skilled and compassionate attorneys are here to give you the best representation and advice you can get during the divorce process. If you have any questions about divorce as a service member, contact our offices for a free initial consultation. You deserve a strong advocate in your corner. 

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