Jurisdiction for Military Divorces

Service members and their spouses often struggle to identify the correct jurisdiction to litigate their divorce. Perhaps the service member is stationed in one location while their spouse and children reside in another location, or maybe everyone is located in temporary location. Residency requirements must be met, but usually the case will be filed in the state where the parties last resided as husband and wife.

Parental Rights and Obligations of Service Members and their Spouses

Parenting plans are documents that set out parental time sharing and responsibility. Parenting plans for Florida service members are created by analyzing the same factors utilized in other cases. The factors are found in Florida Statute § 61.13 and the guiding principle will be the best interests of the child(ren). However, due to deployments and the demands of the service, Parenting plans for service members usually require a level of flexibility that is not found in normal parenting plans. For example, the service member may be entitled to additional timesharing upon returning from a deployment. Or, if agreed upon by the parties in advance or approved by the court, the service member may be entitled to relocate with the child upon receiving PCS orders.

Child support for service members and their spouses is set in the same way that support is set in other cases. The amount is a function of income, the number of overnights, the cost of health insurance and childcare costs.

Equitable Distribution in Military Divorces

A military divorce will require a division of assets, funds and debts much like any other divorce. However, certain assets and benefits are unique to military divorces.

Division of Military Retirement Plans

Military spouses are entitled to claim half of any military retirement pay that accumulates during the marriage. A common misconception is that the marriage must have lasted more than 10 years in order for the spouse to be entitled to a share of the military retirement pay. In fact, the 10-year rule is only relevant to the means by which military retirement is paid to the military spouse. If the parties were married for more than 10 years of the service member’s military service, the spouse’s share will be paid directly from Defense Finance and Accounting Services (DFAS). If the parties were married for less than 10 years of the service member’s military service, then the service member will pay the military spouse his or her share directly or through the court.

How to Calculate the Military Spouse’s Share of Military Retirement

The length of the marriage is the primary factor to determine the military spouse’s share of the service member’s retirement. Four common calculations are used:

• Net Present Value. This is used when a party wants a buyout at time of divorce.
• Deferred Distribution. This is a share that is calculated at the time of the divorce, but the military spouse is not entitled to receive his/her funds until the service member is entitled to receive his/her share at time of retirement; and,
• Reserved Jurisdiction. Here, the Court reserves the right to determine each parties’ share of the retirement as the time of the service member’s retirement.
• Point System. The Point System and is commonly used where the service member was in the Reserves. The Point System counts the amount of points accumulated in the marriage rather than the total number of months. The amount of points will differ based on the type of service being provided by the military member.

Thrift Savings Plan

A Thrift Savings Plan (“TSP”) is an investment plan similar to a 401(K). The total amount saved in a TSP is dependent upon contributions to the plan and the appreciation that was earned as a result of the contributions. The amount contributed is usually selected by the service member as a percentages of the member’s pay. Amounts will be taken each pay period, before taxes, up to the maximum contribution amount for that year. The value of the TSP that accumulated during the marriage will be divided and distributed in the divorce, along with the retirement pay.

Survivor Benefit Program

The Survivor Benefit Program (“SBP”) secures military retirement income for the military spouse. The service member can elect to participate in the program, and a monthly premium is paid. A court can order the service member to make the election, and can also determine who will bear the cost of the premium. The service member may be able to change the beneficiary of the SBP, so it is important to specify in the Final Judgment or Marital Settlement Agreement whether the military member can change the beneficiary of the SBP. If secured, the military spouse’s right to military retirement income will be secured even if the service member predeceases the military spouse.

An alternative to SBP benefits is available. In some cases, the parties may prefer to secure a life insurance policy to secure funds for the military spouse. Each case is different and should be evaluated carefully.

Hire an Experienced Military Divorce Attorney

It is crucial to retain an attorney who is experienced with the division of military retirement in divorce. In a settlement agreement, the proper information must be included to verify the parties’ interests in the military retirement. At trial, the parties’ interests will also have to be proven so the judge can enter the proper findings.

Health Benefits for Service Members, Military Spouses and their Children

In a divorce, it is usually best if the military member provides health insurance for the child or children of the parties. TRICARE insurance can be provided for a fraction of the cost of private insurance policies. Also, the military provides lifelong health benefits for service members who commit at least 20 years to the service. Military spouses also benefit from TRICARE for life if they qualify under what is known as the 20/20/20 rule; that is, where the service member served 20 years, the marriage lasted at least 20 years and the duration of the marriage overlapped the service period by at least 20 years.

Transitional Health Coverage is available to a military spouse if the service member served 20 years, the marriage lasted 20 years, but the period of the marriage overlapping the period of service was only 15 -19 years (20/20/15). Here, the military spouse is entitled to full military medical benefits (so long as they do not remarry or enroll in a health insurance plan through employment), for a transitional period. After that, the military spouse may purchase a DOD-negotiated conversion health policy.

If the military spouse does not meet the requirements of either transitional health coverage or full coverage, military health coverage will terminate upon divorce. The military spouse will be given the opportunity to participate in a DOD Continued Health Care Benefit Program. The program will require payment of a premium and it will provide temporary health care coverage for up to 36 months if enrollment is accomplished within 60 days of losing full military health benefits.

Special Alimony Considerations

In Florida, alimony laws apply to service members and military spouses just as they do in any other divorce. The need of one spouse for support, and the ability to pay of the other spouse will be the rule in deciding on either party’s claim to alimony. However, certain considerations can affect the needs of military spouses and service members.

• Temporary Support. The military code of justice requires service members to financially support their family even if no court order is in place. The amount of support required is determined by income level and number of dependents. A failure to abide by this policy is punishable under the military code.
• Affect of Military Retirement. If the divorce is occurring after the service member is retired, the military spouse’s need for alimony may be mitigated by receiving their share of the military retirement (assuming the spouse is entitled to a fraction of the military retirement).