If you or your spouse are a member of the United States military and are considering divorce, you face some special considerations.
You need a Florida divorce lawyer who is familiar with the special rules and requirements that apply to members of the military who are seeking a divorce.
Military Divorce Is Governed by State and Federal Law
Unlike civilian divorces in Florida, military divorce is governed by both state and federal law. Federal law may affect where a divorcing military couple can file for divorce and how military pensions are divided, while Florida law will govern questions of spousal support, child support, and child custody.
Where to File for Divorce if You Are a Member of the Military
A court must have jurisdiction over the people who come before it. For civilians, this is usually the place where a person lives. For military personnel, jurisdiction is often the place where a person holds legal residence if the service member is stationed somewhere else.
Military members and their spouses usually have three choices when it comes to jurisdiction:
- The state where the filing spouse resides
- The state where the military member is stationed
- The state where the military member claims legal residency
The law of the state where you file for divorce will govern issues such as property distribution, child custody, and child support.
Regardless of what state law applies, under the federal Servicemembers Civil Relief Act, active-duty service members cannot be sued or begin divorce proceedings while they are on active-duty or for 60 days following active duty (at the discretion of the court). This allows active-duty service-men and -women to devote their full attention and energy to defending the nation.
Benefits and Pensions in a Military Divorce
Military pensions are one of a service member’s most important assets, and they are often divided between spouses during a military divorce. The Uniformed Services Former Spouses' Protection Act (USFSPA) governs how military benefits will be calculated and divided in a military divorce, and authorizes direct payment of a portion of military benefits to the former spouse.
Under the USFSPA’s “10 year rule,” the non-military spouse’s share of military benefits will be paid by the Defense Finance and Accounting Service (DFAS) if there were at least 10 years of marriage that overlapped with 10 years of military service. However, many people do not realize that the division of a military pension is negotiable, even if there are fewer than 10 years of overlap between the marriage and a person’s military service.
An overlap occurs when the spouse was married to the service member for at least half of the years that the military-spouse was serving. The non-military spouse can ask for half of the pension even if they were married for less time and the service member can ask for a smaller division of the pension even if they were married for longer than 10 years.
Regardless of the length of the marriage, a court may still authorize payment of benefits to a military spouse as an offset, which would be paid by the military member rather than by DFAS.
A non-military spouse can receive a maximum of 50% of the military spouse’s retirement benefit. If child support is being taken from military-spouse’s retirement benefit, the maximum combined amount of spousal support and child support cannot exceed 65% of the military-spouse’s disposable retirement pay.
Spouses of current and former military personnel are also eligible for full medical, commissary, and exchange privileges when:
- The couple was married for 20 years or more
- The service member has performed at least 20 years of creditable service toward retirement pay
- There was at least a 20 year overlap of marriage and military service
Spousal Support, Child Support, and Child Custody in Military Divorce
The military has special rules when it comes to spousal support, child support, and child custody. The military lifestyle often involves frequent moves and long deployments, and military couples often have young children. Because of the military lifestyle, the non-military spouse is often unemployed or underemployed, which might mean that the service member is responsible for spousal support after the divorce.
Child support awards are determined by Florida law, and are based on the service-member’s total entitlements (base pay, Basic Allowance for Housing, Basic Allowance for Subsistence, and any special pays). Non-military spouses may receive a larger than customary amount of child support if the military spouse has frequent deployments because the military-spouse is not able to have the children for regular visitation. This places a larger share of the childcare burden on the non-military spouse.
This is one reason it’s important to hire a Florida divorce attorney who understands military divorce. Your attorney will need to educate the court about the various elements of a service member’s pay. The court should also understand the potential for those amounts to change based on deployments, base transfers, and other factors.
Frequent deployments can also affect the ability of a service member to get full custody of the children. Judges will consider the best interest of the children, and may decide that the children are better off living with the parent who is not likely to deploy.
Will the Military Give Me a Lawyer?
Each branch of the military has legal assistance attorneys located on most bases. These attorneys generally cannot represent you in your divorce, but they can be helpful. They can also:
- write letters for you
- review and revise legal documents
- negotiate on your behalf, and
- answer questions, including those of your private lawyer, if you have one
The spouse of a service member can also seek the help of a military legal assistance attorney at any base and from any branch of the service.
Service Member Considering a Military Divorce? The Law Office of Jody L. Fisher Can Help
If you are a member of the military and are considering divorce, contact the Law Office Jody L. Fisher for a consultation.
Based in Leesburg, Florida, my team proudly represents people throughout central-Florida. For answers to your military divorce questions, call (352) 503-4111, email, or complete our online form.