Divorcing as a Member of the Armed Services
May 8, 2019
BY: Joseph DiPiazza
This blog is in recognition of Armed Forces Appreciation Day on Saturday, May 18, 2019. From a legal perspective, members of the Armed Services who are getting divorced are similar to other civilians insofar as state law and local procedures largely govern. Some federal statutes and military regulations may apply, however, depending on where a party may file. Here are three main divorce components of which all military members who may be divorcing should be aware:
The biggest variations between civilian and military divorces lie in the area of property division. Military couples must be familiar with the Uniformed Services Former Spouses’ Protection Act (USFSPA), which is a federal law designed to address issues that arise when a member of the military divorces. The USFSPA accomplishes two things: 1) it recognizes the right of state courts to distribute military retired pay to a spouse or former spouse; and 2) it provides a method of enforcing these orders through the Department of Defense.
However, the USFSPA does not automatically entitle a former spouse to a portion of the member’s retired pay. A former spouse must have been awarded a portion of a member’s military retired pay as property in his/her final court order. Importantly, he USFSPA addresses the concerns of divorcing military couples when one party is a civilian by offering guidance as to how state-level family courts can consider military retirement benefits, commissary and exchange privileges, as well as military-funded health care.
Court orders in divorce matters can also affect a divorcing servicemember’s choice of beneficiaries in a Survivor Benefit Plan (SBP). The financial protections offered by the SBP (payment of benefits to the surviving spouse) do not carry on after a divorce. Unless specific action is taken to note a particular beneficiary, SBP payments go to the spouse at the time of the servicemember’s death. Such a beneficiary designation might be ordered by the court as part of the couple’s divorce decree to ensure that the former spouse is protected financially after the servicemember passes away.
Spousal Support and Child Support
As divorce laws vary between states, alimony may be awarded in one case but not in a similar case in another state. Alimony amounts may also vary according to each state’s laws, though federal law caps the amount a state court can take from a military member’s wages.
To accurately calculate income available for support, your attorney will review the servicemember’s Leave and Earnings Statement, as well as estimate an appropriate amount for items such as food and housing provided without cost.
Finally, it is important to note that the Air Force, Army, Marine Corps, and Navy all have different policies governing payment of spousal and child support for parties without an agreement or court order. The USFSPA also helps enforce the payment of court-ordered child support or alimony.
Custody and Parenting Time
Child custody rules in New Jersey are complicated for anyone, but they can be even more complex for military families. Military parents must consider the effects of possible deployments and reassignments on custody arrangements. Some service members may be deployed overseas with very little notice, and others may be reassigned to a base in another state or even another country. Parenting time can be modified based on whether or not the servicemember is able to spend time with the child due to military obligations. Absences due to military service, however, can undermine and disrupt existing arrangements and create stress on parents and children. Thankfully, there are processes and protections available to help servicemembers with the impact of deployments and moves on their current arrangements. For example, family care plans can be created to describe what will happen to children (or any other dependents) in case of deployment. However, family care plans should not conflict with any other legal documents, such as the service member’s divorce decree, or custody order.
The rules regarding divorce for military families can be complex. If you are considering getting a divorce and one or both of the spouses are in the military, the attorneys at Lesnevich, Marzano-Lesnevich, O’Cathain & O’Cathain can assist you. Contact us today to schedule a legal consultation with our Family Law Attorneys in New Jersey.