When divorce occurs in a military family, there are laws and potential issues that both divorcing parties must keep in mind. Whether you are the military service member or your spouse is, questions such as where to file for divorce, how child custody and visitation works, and what happens to the military benefits will surely come up. In this podcast, Tampa Bay divorce lawyer Ginger L. Dugan answers some of the most frequently asked questions about divorce when one or both spouses are in the military.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Ginger L. Dugan, Divorce Lawyer
Ginger L. Dugan, a divorce lawyer at All Family Law Group in Tampa, Florida has 10 years of family law experience.. Dugan is a fierce advocate for her clients, who has the skills and knowledge it takes to handle the most complex of cases. Ginger practices in all areas of family law, including military and civilian divorce, child custody, parental responsibility, spousal and child support, asset and debt division, retirement, and pension division. For more information about how Ginger’s firm can help with your military divorce-related issues, please visit www.familymaritallaw.com.
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Read the Transcript of this Podcast Below.
Tampa Bay Divorce Lawyer Ginger L. Dugan on Military Divorce
Diana Shepherd: Could the disclosure that an officer was having an affair hurt their military career, and are there any implications for that officer’s spouse?
Ginger L. Dugan: The military doesn’t take adultery very lightly. When that issue comes up, you want to talk to your attorney specifically about the circumstances and be aware that as a military spouse, if you are alleging an affair, if you do that within the petition and it’s made part of the public record, they could be brought under court martial. They could lose their rank, they could lose their job, they could even be kicked out of the military. As a spouse of a military person, you want to make sure that you protect your rights. Of course, it’s a horrible thing to have to go through an affair, but then also to have the person that is providing support for you not being able to provide that support because they’re no longer employed, that would hurt even more.
While there may be some places where it is appropriate to bring up that information, you want to be careful about disclosing it publicly. You want to tell your attorney everything that your attorney may want to use as information, obviously not for blackmail, no attorney would do that, but they may well use the information sparingly given the implications that they could have for the military spouse in their actual military role.
When one spouse is on active duty or deployed, can the other spouse file for divorce against the active duty spouse?
You can file for divorce against an active duty military person; however, the Servicemembers Civil Relief Act does come into play. What that means is, if the service member is unable to attend court hearings or if they are deployed in a place where they don’t have access to phones or to email where they would be able to communicate with the court or to get the appropriate documents, they can actually petition the court and get a stay of the proceedings, so basically push a hold button on the proceedings for a certain amount of time. They can’t do it forever, and when they’re on active duty, it doesn’t always mean that they can’t get to a phone. There’s only a certain amount of time that they can use the Act, but you can definitely still file for divorce. There just may be some other things that come into play. You want to talk to your attorney about it. If your spouse has an agreement, if you all are kind of in an agreement that you want to file for divorce, then I would always talk to the person first and kind of make a joint decision as to the timing, because if you know they’re going to be in a country or in a place where they don’t have access, I would wait to file the divorce papers until after they’re in a place where it would be easier for them to communicate with the court.
If you are on active duty in the military, where do you file your divorce? In your home state or where you’re deployed?
As that active duty person, you have the option to choose two different venues. There are a couple of different things that come to play, and I always caution folks about the different areas. First of all, if you have children, there is an act called the Uniform Child Custody Jurisdiction and Enforcement Act, which deals with custody of a child. What the act says is, wherever the child has been living for the last six months, that is the state of residence for the child. It doesn’t really matter where you are deployed to or where you have been living. The court needs to have contacts with people that have been around the child. The court and most of the states have adopted this Uniform Child Custody Jurisdiction and Enforcement Act. It’s something that is going to come up in most states. If the child has been living in a state for a certain amount of time and child custody is going to be an issue, then I would say the active duty person needs to file where the child has been living. If there’s no children, then you can really choose your state if the active duty person wants to file in the state where they have been stationed, because it’s a little bit easier to get a divorce there. For instance, in a state like Virginia, you have to be separated for a year. In a state like North Carolina, you have to be separated for six months before you can get divorce. In Florida, where I practice, you can get a divorce within 20 days. A lot of folks that are stationed here in Florida, even though their residency may be in North Carolina or Virginia, they would want to file their divorce here, and they can do that as long as they have actually lived in Florida for six months. That’s another consideration: how quickly you’re trying to get your divorce done. Then there are a couple other considerations, so you want to talk to an attorney about it to make sure you choose the correct venue. If you’re on active duty – if you’re an active duty individual – you have a couple of different options to where you can file.
If your spouse is active duty military, where do you file the divorce?
If your spouse is active duty military, it’s important to think about their military pension. If they are going to be in the military until they retire, so they’re going to be in for at least 20 years of credible service, and you want to be able to get a portion of that military retirement, then you want to make sure that you file in the state that they have declared as their legal residence for the military. That’s kind of a unique situation in a divorce, because if a person consents to jurisdiction wherever you’re currently living, then it’s fine, but if they don’t consent to have jurisdiction over their pension, then it can cause a problem. If a pension is involved and you want to make sure you get a portion of that pension, you want to make sure you file the divorce papers in the active duty person’s state of legal residence. If there is no military pension involved, if that is not something that you’re asking for, then you can either file in the state where you have been residing for the last six months or the state of legal residence.
If both the service member and their spouse have been stationed in a foreign country for more than six months, where do they file for divorce? In that foreign country or in their declared state of residence?
It’s a difficult question when you have folks that have been in another country. If they are both active duty folks, it’s a little bit easier of a question. If you have children and the children have been living with you in Germany and your military spouse does not consent to dealing with the child custody issues in the United States, or if there are no contacts with the United States, then you really have to do the child custody part in Germany. I did have this come up recently where the court in Florida decided that Germany courts had jurisdiction over the children because the children have been living there for five years. Florida didn’t have any contact with the children and couldn’t talk to the teachers to see what’s been happening with the children. There’s really no evidence that the court could hear about the children here in Florida. But usually, if parties are getting along, you want your divorce to be in the United States because sometimes there are things that change. You may want to change custody in the future, you may want to move to another place, child support might need to be changed, or alimony might need to be changed. You want to be able to come back to court again, and it’s usually a lot easier for folks to do that within the United States. I, of course, do not practice in Germany, so I’m not sure how easy it is to do actions there, but I know that traveling there isn’t as easy as it is travelling throughout the United States. I would always suggest to try to talk to your spouse and see if you can consent to filing the action within the United States. It may be something where you have to have an agreement on the custody issues to do that, because, like I said, if the children are six months elsewhere, then the court doesn’t really have jurisdiction unless both parties agree. I would say that it’s better for the spouses to file in the state of their legal residence, if they’re both in the same legal resident state. But if custody is going to be an issue, then they may have to go through bifurcation, where you break up the case into two different sections. They may have to do the custody of the kids in Germany courts or whatever country they’re in and then do the equitable division of property and assets and all that stuff in the United States. But it’s always better to have them moved to the United States, so that if you have to come back later, you can modify here in the states.
If you’re active duty military and you’re deployed, how would you appear at a final hearing?
Everything is going to be a little bit different, and different judges have their own procedures, but generally speaking, an active duty person can appear for a hearing over the phone. In Florida, we have notary rules that allow for a person to be sworn in either by a notary or by an officer if they are a deployed or an active duty person. For instance, I have a gentleman recently who is stationed in California and he had to get up very early because on the east coast, our hearing was at 9:00, but he did get an officer to come with him, so his officer swore him in and he was able to get divorced that day over the phone in Florida, even though he was stationed in California. Generally speaking, most of our courts appreciate our military service members and they will do anything possible to kind of help them get things done. You want to talk to a local attorney to see what the local rules are in your jurisdiction, but generally speaking, you should be able to appear by phone.
Is a member of the military required to support their spouse and child while the divorce is pending?
Yes. The military takes spousal support very seriously. Family support is something that the military members are required to do. You get a certain amount of money in your paycheck that is kind of earmarked for the family and the officer. Your commanding officer can help you understand what that amount is. If not the commanding officer, you can usually go to the legal department on the base and they will tell you the percentage. Different branches in military lay out different percentages that they think are necessary for the support. But generally speaking, if you are paying for the person’s housing, utilities, phone, giving them money for food, you’re probably going to be okay, but you want to make sure that you check with your commanding officer because you can get in big trouble if you just cut someone off completely. That’s another thing where you could be court-martialed or you could be brought before the board if you are not supporting your wife and child even through a divorce. But the other thing you need to remember is the amount of support that the military will require you to pay will probably not be the same as what you’ll be required to pay in the divorce; it’s probably going to be higher, so don’t feel like that’s going to be forever. That’s something that the court will eventually decide, what exactly the amount would be, but you do need to make sure that you do provide the support while you’re in the pending action.
Does the non-military spouse get a portion of the military member’s military pensions?
The non-military spouse is definitely entitled to a portion of the military member’s military pension. There are a couple of rules that come into play that are important to remember. Most people have probably heard of the 10/10 rule, which is that if you are not married for 10 years, the military will not pay you any of the other person’s military pension. That does not necessarily mean that you are not entitled to money. It just means that the military, the Department of Financial Services is not going to hand it over to you. The money will not come directly from them. Let’s say that you are married for nine years, and so you would be entitled to a couple of hundred dollars of the military person’s pension but you can’t get it directly from the government. What you would do is, as part of your agreement, you would have written in how the spouse would pay you. There’s also ways to negotiate it, so that is a value, and sometimes you can determine what that value would be over a certain amount of time. Maybe you say, you know what, I don’t really need your pension but I want the house, so I’m going to keep the house and the equities that’s in the house right now. I’ll trade that to you for the portion of your military pension I’m entitled to. In Florida, we have some rules that make it a little tougher to get stuff after the divorce, so if someone has had under a 10-year marriage and they want a portion of that pension, I try to trade it for something else just because of our rules, but every state kind of has different rules. You want to talk to an attorney in your specific state where you’re filing to make sure what exactly those rules are in your state. If after you got married the spouse joined the military and the spouse retired during the term of the marriage, so you guys were married the entire term of the military service, then the spouse is entitled to half and the military will gladly pay over the other spouse’s half. So, generally speaking, you are entitled to a portion of that.
Regarding the pension, is there any difference if the military spouse was in the reserve?
Yes. Reserve time does not count the same as active duty time. You want to make sure that you get a breakdown of your points. Military folks will probably know what I mean by that, but you want to make sure that you know exactly how many points you have towards service during the time of the marriage. A lot of folks who’d already been in the military when they got married, that time that they have in the military before the marriage, that is not considered marital property during that time. Once in Florida, it runs until the divorce is filed. Different states have different rules on that. Sometimes it’s not until the divorce is final. In Florida, it’s when the divorce is filed. During that time frame, that is when you determine the marital portion, so the non-military spouse is only entitled to half of that portion. A lot of people think that once you are married to them, you automatically get half. That’s not necessarily true. When it comes to the points, when it comes to reserve folks, for each year that they are in reserve time, it does not equal a year of active duty time. You want to look for the exact number of years. You may think, Oh, you know what, I was married for 15 years, so she gets 15 years’ worth of my military pension. But let’s say that during the 15 years, five years were on reserve. Well, those are not going to be actual five years. You want to check your points, you want to talk to a military specialized divorce attorney, because if you have any kind of reserve time, you want to make sure that you are not giving up what would be your portion of the pension.
When a retired military member passes away, does the former military spouse continue to get their portion of the military retirement?
No. The military retirement dies with the military spouse. However, if at the time of retirement you have elected the survivor benefit plan, that is a benefit that would continue after the military spouse passes away. It’s a kind of annuity, but you have to pay for that. If you are divorcing a military spouse, you want to make sure that in your marital settlement agreement or when you go in front of the judge you ask to be designated as the beneficiary of the survivor benefit plan. There is a cost associated with it. It depends on what your rank is and what exactly you choose, and it does have to be chosen at the time of the retirement or ordered by the court. You want to make sure that you do that. It is a really big benefit. Make sure that you really think about that. The cost of it is minimal compared to the benefit that you get, especially if there’s a large age gap. If that is your main support that you’re using, you want to make sure that you have that. You can also use life insurance instead, but the survivor benefit plan is a really great benefit. You want to make sure you look into it and make sure that you are getting all of the benefits that you deserve, and it has to be written into your marital settlement agreement or else you don’t get it. If it’s not written in there, then it cannot be changed. Then the military spouse if they get remarried, they are allowed to change it. So you want to make sure that you put in your settlement agreement that it cannot be changed, so you’re the irrevocable beneficiary. So make sure you talk to an attorney. When it comes to military divorce, it is crucial to have an attorney because you have to have very specific language or else the government just won’t even consider what you are trying to do in your divorce agreement.
What happens if the military member has been married more than once? Can that survivor benefit be shared by more than one spouse?
Unfortunately, no. The survivor benefit plan can only go to one person. If that is written into an agreement, it just won’t happen. It cannot be shared and it’s only designated to one person. The other thing about it is, if you get divorced from your military spouse and you get remarried before the age of 55, then you do not continue to get that survivor plan benefit. I know it’s very strange, it doesn’t make any sense. It’s just one of the hinky military rules. If you do get remarried, then that survivor benefit plan stops. However, if you get divorced again, there is a way that you can reapply for it, but that is kind of a real unique area of law. So if that is happening to you, if you are experiencing something similar to that, then I would definitely talk to military specialized attorney because every case is different and you know your unique facts are going to be something that you want to share with an attorney and get very specific advice.
Are there other types of retirement funds that service members can put money into?
There are a couple different ways to save money for retirement, but the big one is the thrift savings plan (TSP). The thrift saving plan is kind of like a 401(k) for the military. It’s a great plan. A lot of folks put into that. It’s something that you definitely want to ask about if you are divorcing a military spouse, you want to make sure that you bring that up. If they don’t’ disclose it, you can request documents from the military about it, but usually I see a lot of TSPs along with the military pension. Usually you don’t just have a military pension. You’re going to also see the thrift savings plan, and it can be several hundred thousand dollars. I had a case this morning where it was $200,000. That’s a really big benefit, and the non-military member would be entitled to half of the marital portion, at least in Florida. That’s the rule: you’re entitled to half of the marital portion, and I think a lot of states follow that kind of rule also.
Can a military spouse continue to be covered under the military member’s insurance after the divorce is final?
This is one of those areas of law where I get questions all the time, and I deal with a lot of heartache when it comes to this question. In order for you to continue on TRICARE, which is the type of insurance that you receive when you’re in the military, you have to have what’s called the 20-20 spouse. What it basically means is that you have to be married to the military member for 20 years of credible service. Remember before when I was talking about the reserve pay, reserve doesn’t equal exact years. That can mess up your eligibility for TRICARE also. I had a case recently where the wife was married for 19 years and 9 months and the husband retired from the military. This is before they got a divorce. If he had just waited for three more months before he retired, she would have been a 20-20 spouse and would’ve gotten TRICARE for life. It’s a huge benefit for both the military spouse and the military member because, a lot of times, as a military member, you might have to support your spouse, you might have to pay alimony or spousal support. If you are able to give them TRICARE, it doesn’t actually cost you anything. It comes straight from the government, so you’re not paying anything for their TRICARE after your divorce. But that is a benefit they would have to pay. If you are looking to get divorced and your spouse is close to being 20 years, I would always suggest that you wait. You wait to retire until there has been an overlap. There is no way to go back after you have retired, so there’s no way for you to say, ‘Oh, I want to go back and get a couple more months.’ Make sure that you are really considering that, if you are the spouse or the military member, before you file for divorce. Like I said, it’s a really great benefit. TRICARE is one of the best types of insurance, and the co-pays are low and it’s a really helpful thing for both sides of the coin when it comes to the military member and the spouse.
How does timesharing or visitation work when a military member is deployed?
Most of our states have now adopted laws that deal with timesharing when a military member is deployed. In Florida and in Georgia, and I’m sure there are other states that have also done this, there is a special statute that says that if a military member is deployed, then their family is allowed to exercise their timesharing with the child during that deployment. What that means is, let’s say that you are deployed to Afghanistan, your mother can come to wherever your spouse is residing and visit with your child during the time you are in-house. Let’s say you have the child every other week. If your mom wants to move to Florida and have your children during the weeks when you would’ve had your children, then she can do that. You can designate a person for that. I would always talk to an attorney about it because every state is a little bit different and you want to make sure that you specifically state that in your agreement, but there are laws that do allow for that. There are ways, and you can also put in provisions for Skype and FaceTime. Most of my military folks, that’s what they used to communicate with their kids, and it’s a lot easier when you’re seeing faces on the other side. You can put in provisions that require the spouse or the former spouse to make sure the children get in front of the camera and make sure that they call at a certain time, especially if the time zones are weird. You want to make sure you have that kind of information put into your settlement agreement so that they will be held to having to do that. Hopefully, they would do that anyway, but you never take anything for granted in a divorce. You want to make sure you get all the information in that settlement agreement. You want to talk to an attorney about that specific language and just make sure that that’s in there.
Is the non-military spouse entitled to keep the house just because the military spouse is deployed?
No. The deployment alone is not the only factor the court considers. The court’s going to consider a lot of different things. They’re going to consider whether the person that is leaving the home is able to pay for the mortgage, whether they can pay for the utilities, and whether they can afford it. If they have done something to hurt the home, that can be a factor. Just because you can’t live in it does not necessarily mean your spouse gets it. A lot of times, that is what happens just because it’s easier that way, but that is not the only thing the court considers, so don’t just give up easily. Make sure that you know you’re looking at all your different options and you’re talking to your attorney about what you want to have, because I have a lot of cases where the house will be used by a different family member or something like that until the military member gets back.
What happens if the non-military spouse runs up a lot of credit card debt in the military spouse’s name while they are deployed and without their knowledge or consent?
Unfortunately, this is something that happens sometimes, and you never want to hear the story. One of the first things that you can do is, whether it’s your spouse or not, you can always call the police and file a police report for identity theft. A lot of times, you don’t want to do that against your spouse. If you don’t want to go that route and file for a criminal case, then you can also invoke what I said before – the Servicemembers Civil Relief Act. There are certain provisions in that act that allow for you to have a lower interest rate on credit cards while you’re active duty or while you’re deployed. That’s helpful and kind of lowering those amounts. You want to make sure you get them closed as soon as possible. It’s also a good idea to talk to the individual companies. Sometimes they will have programs for military members where you can negotiate. You might be able to tell them the circumstances and maybe pay off at a lower amount than what was on there. There are a couple different options. You want to talk to an attorney about it though, but if you are separated and you don’t care if the person goes to jail, then I would call the police, number one.