Every step of a man’s divorce is made slightly more complicated when he is an active duty military servicemember.
From the inception of the case, a military divorce presents questions that are not usually present in other fathers rights family law cases. For example, military divorces frequently raise complex jurisdictional questions. In most divorce cases, the husband and wife reside in the same state. Military servicemembers in Florida often call another state “home.” Also, military servicemembers in other states often call Florida “home.” This is frequently true because Florida has no state income tax. And, regardless of where the servicemember claims to legally reside, issues concerning any children are usually resolved in the state where the children have lived for the past six months.
Florida has special statutes governing personal jurisdiction and subject matter jurisdiction in a divorce case. There is also a well-developed body of case law on jurisdictional issues. You should hire a fathers rights military divorce attorney that is familiar with this law. You do not want to pay your attorney to learn it. And, you cannot afford for your attorney to file in the wrong jurisdiction.
After a divorce case is filed, service of process in most divorce cases is just a matter of handing the petition off to a local process server. And, if the respondent doesn’t file an answer within 20 days, you can apply for a default. In a military divorce, there are special federal statutes governing service of process and defaults. The rules get even more complicated if the servicemember is deployed overseas, where federal law and international law govern service of process. Federal law provides special protections for servicemembers who are on active duty. For example, a party cannot obtain a default judgment against a servicemember without the appointment of an attorney ad litem. Most practitioners have no idea that filing a false affidavit of military service is a federal crime.
Even after a military divorce case is “off the ground,” the servicemember may be deployed to a location where he or she cannot effectively participate in a case. For example, attorney-client communications are very difficult during a deployment to the mountains of Afghanistan. A competent military divorce attorney will know how to have the case put on hold during this period. Federal law provides a mechanism to “stay” the case. But, it is critical to get certain documents from the servicemember’s command before the unit deploys. Consult an experienced Tampa military divorce attorney if you have questions about your case.
Every branch of the military has its own regulations concerning family support. These military regulations operate in the absence of an agreement or court order. Many practitioners do remind the servicemember about the support obligation under the military regulations.
When the court is tasked with establishing child support or alimony, the military pay system also presents special issues. Money paid to servicemembers that is designated as “pay” is typically taxable. Examples include basic pay, combat pay, hazardous duty pay, and flight pay. Military “allowances” are typically tax free. Housing allowances, subsistence allowances, cost of living adjustments, disability pay, and per diem payments cause significant confusion, even among experienced judges and practitioners.
Does a per diem allowance or cost of living adjustment increase a servicemember’s “income” for purposes of determining child support? It depends on whether these payments reduce the servicemember’s cost of living. Florida’s district courts of appeal cannot even agree on how disability and retirement pay should be treated for purposes of awarding alimony. Your divorce attorney has to understand all of these issues at the beginning of your case. Otherwise, you will have to pay your attorney to research the law. And, if your attorney doesn’t do his or her homework, your rights may be compromised.
The division of the parties’ marital assets is known in Florida as “equitable distribution.” In a military divorce, military pay, assets, and benefits create a number of complex issues. First, your attorney has to know how to divide a servicemember’s right to military retirement pay. In some cases, it may be best for the servicemember to ask the spouse to waive any claim to the servicemember’s retirement. Her claim may or may not be very valuable. Unless you bring an accountant to mediation, chances are that your attorney will have no idea how to calculate the net present value of a military retirement annuity. In other words, in negotiating a waiver military retirement, your attorney may not even know what the spouse’s claim to the retirement is worth.
Most attorneys also have no idea that a servicemember’s spouse is eligible for direct payment from the United States government if the spouse has 10 years of marriage overlapping with 10 years of active duty military service (this is known as the “10/10 rule”). The 10/10 Rule is measured from the date of marriage to date that the final judgment is entered. Many clients have been told that they are not eligible for direct payment because they filed for divorce before reaching the 10-year mark. A mistake like this could compromise the spouse’s ability to timely collect payments after the servicemember retires.
In many cases, the attorneys completely fail to perform a calculation to base the spouse’s share of the retirement pay on the servicemember’s average pay for the 36 months preceding the filing date. This is known as a “High 36” calculation. If the servicemember’s attorney (or the supposed “QDRO expert”) fails to perform this calculation, it could cost the servicemember more than $100,000 over the course of time.
A military divorce attorney should understand whether the Survivor Benefit Plan is the best means to insure the spouse’s interest in the service member’s military retirement. For example, many attorneys representing spouses will automatically demand that the servicemember elect to use the Survivor Benefit Plan (“SBP”) to secure the spouse’s interest in the military retirement. In some cases, the attorney will demand the SBP election even when it makes no sense. The cost of the SBP is shared on a pro-rata basis between the servicemember and former spouse. Significantly, a former spouse who remarries before she reaches age 55 is not an eligible beneficiary under the Survivors Benefit Plan. In other words, a former spouse with plans to remarry may end up financing an insurance policy that will never pay her a dime. Inexperienced attorneys will pound the table demanding that the servicemember pay the very expensive premium for this insurance, all of which will go to the servicemember’s new spouse if the former spouse remarries. In the right circumstances, you need your attorney to be talk her out of demanding SBP protection.
Many attorneys also overlook certain assets. Is there a thrift savings plan? Did your attorney advise you that military “leave” is a marital asset that can be valued and taken into account in the equitable distribution scheme. If you are the servicemember, did your attorney mention that this “asset” is not subject to distribution if you have previously cashed in or sold back your leave? You need an experienced military divorce attorney to advise you on these issues.
Other Assets and Benefits
Disputes over benefits under the Post 9-11 GI Bill are increasing in military divorces. Some attorneys representing spouses will demand equitable distribution of a servicemember’s Post 9-11 GI Bill benefits. Numerous federal cases have held that, under the doctrine of federal preemption, state courts do not have jurisdiction to divide federal benefits unless a federal statute grants that authority. Congress also enacted a statute expressly stating that the Post 9-11 GI Bill is not subject to equitable distribution. Your father’s rights military divorce attorney needs to be able to explain that she has no claim to your Post 9-11 GI Bill.
Even though it is not part of the “marital estate” or subject to equitable distribution, the Post 9-11 GI Bill can be tremendously useful in settling a military divorce case. Many servicemembers will voluntarily sign over their right to the GI Bill benefits in lieu of paying more alimony or dividing the military retirement. But, the transfer of this benefit absolutely must occur prior to the entry of the final judgment. A servicemember is only eligible to transfer his GI Bill benefits to a spouse, not a former spouse. Please also note that, in addition to the tuition payment, the Post 9-11 GI Bill provides for a significant monthly stipend. But, a former spouse is not eligible for the monthly stipend so long as the Servicemember is on active duty and collecting a housing allowance. A servicemember’s children, however, are not subject to this limitation. A Servicemember may be willing to sign over his educational benefits to one or more of the parties’ children.
Former Spouses who have been married to a servicemember for more than 20 years overlapping with 20 years of active duty military service may also be eligible for lifetime healthcare coverage through the military. Former spouses who do not meet the 20/20/20 spouse criteria are frequently still potentially eligible for continuing healthcare coverage. Knowledge of this fact will prevent her from collecting alimony for to cover the cost of healthcare.
Contact a Military Divorce Attorney Who Understands Fathers Rights
If you want to make sure that your rights are protected in a military divorce, please contact us at (813) 331-5699 or contact us online.