Military Divorce Attorney in Batavia, Ohio
Divorcing a spouse who is serving in the military presents unique challenges as compared to civilian divorces. One of these challenges relates to the division of the servicemember’s retirement pay, another to where the divorce papers are filed. States have different rules on military divorces. It’s essential to work with an attorney experienced in military divorces and related legal matters, which can be tricky if you try a DIY divorce or use a lawyer inexperienced in military divorces.
In or around Batavia, Ohio, reach out to Douglas A. Ball Attorney at Law. He has represented active duty and retired military personnel (Army, Navy, Air Force, Marines, Coast Guard, and Reservists) and members of the Ohio National Guard, as well as their civilian spouses, in the family courts of Clermont County and Warren, Brown and Hamilton counties.
Which State Should the Divorce Be Filed In?
State courts rule differently on the division of military pension in a divorce. Some western states require that the servicemember begin making pension payments immediately to the spouse or suffer an accrual of interest on the unpaid amount, even though the pension has yet to begin being paid. The servicemember should insist that the divorce proceedings be held in his or her state of legal residence.
The federal law that allows military pension division, the Uniformed Services Former Spouse Protection Act (USFSPA), says that a spouse can always obtain military retirement division in the servicemember’s "domicile," or state of legal residence. Anywhere else can be iffy unless the servicemember consents.
Servicemember’s Civil Relief Act
The Servicemember’s Civil Relief Act (SCRA) is federal legislation that grants the servicemember the right to request a stay of the proceedings. This can be done if the servicemember’s duties prevent his or her appearance in court. The result can be a sort of continuance of the divorce case.
The servicemember’s attorney must request a stay under the SCRA to the court hearing the divorce. The request must also include a statement from the servicemember’s commanding officer stating that military duties prevent the servicemember’s appearance and that leave is not being granted. Of course, if the servicemember is serving on a base a few miles from the courtroom, this tactic is likely to be viewed skeptically by the court.
In addition, in Ohio, military personnel are protected under the Soldiers and Sailors Civil Relief Act. A civilian spouse or parent cannot obtain a default judgment while the spouse is stationed or deployed outside Ohio. Those proceedings are delayed to give the military member notice and opportunity to protect their parental rights and financial interests. The court can also appoint an attorney to protect the servicemember's interests.
Access to Military Pension During Divorce
This is where matters can get a bit complicated. There are various rules depending on the length of the marriage and the marriage’s coincidence with the spouse’s military service. In other words, if John has been serving for five years and then marries Jane, and she seeks a divorce six years later, what does John owe from the pension he is working toward? (See above—state courts can treat this differently.)
Under the USFSPA mentioned above, state courts are allowed to treat retirement pay as either separate property or marital property, but all 50 states treat it as community or marital property. There is no magic formula for dividing other than time of marriage and time of creditable service during that time. But to receive payments directly from the Department of Defense (DOD), the divorced spouse must have been married to the servicemember for at least 10 years coinciding with the servicemember’s creditable military service (10/10).
Also, the DOD will not make payments of more than 50 percent unless child or spousal support is included, in which case, the percentage rises to a cap of 65. To receive direct payments, provided the 10-10 rule is met, the divorced spouse must submit the proper paperwork specifying either the percent to be paid or the amount.
The 20/20/20 Rule
If the marriage lasts for 20 years and overlaps 20 years of the spouse’s military service, then the divorcing spouse is entitled to TRICARE and military medical treatment. The government will pay for these benefits, not the divorced servicemember.
Survivor Benefit Plan
Another consideration in a military divorce is known as the Survivor Benefit Plan (SBP), which is authorized by the Uniformed Services Former Spouse Protection Act. Unless an SBP is in place—the servicemember must designate his or her former spouse as the beneficiary—any retirement payments going to the ex-spouse will stop when the servicemember passes on. With an SBP in place, payments will continue.
This can be a huge bargaining chip in a military divorce, but divorcing spouses and inexperienced lawyers may not even be aware of it.
If you think a military divorce in the United States seems challenging and confusing, try getting one overseas. First, an overseas divorce may not even be recognized in the U.S. You might have to go through another divorce proceeding when you return stateside. As mentioned earlier, the optimal place for a military divorce for a servicemember is his or her home state.
Military Divorce Attorney
Serving Batavia, Ohio
These are just some of the special considerations of military divorce. Douglas A. Ball will explain your rights and take steps to protect you and achieve your goals. To speak with a military divorce attorney in a free initial consultation, call us today or fill out our online form.