Divorce is a complicated matter, no matter what the circumstances. However, some extra complexity can arise when one of the parties involved in the divorce is a military servicemember: there are unique issues that have been addressed by laws in an attempt to protect our soldiers and their spouses. The ability to claim alimony and enforce alimony orders against servicemembers is an area that has been heavily legislated and litigated. The following article addresses some of the issues that arise relating to military divorce and alimony.
What Law Applies?
There are two sets of laws likely to impact a military divorce and alimony. The first is the divorce law of the state where the divorce takes place. The second is the Uniformed Services Former Spouses Protection Act (USFSPA).
Local laws control most aspects of the divorce, including the procedure and the rights of the parties against each other. The USFSPA is a federal statute that directs the military to accept state statute's treatment of issues such as child support, spousal support, and military pay and pensions. The USFSPA also permits states to classify military retirement pay as property, as opposed to income.
The grant of these rights is important since the U.S. military would otherwise be largely exempt from being compelled to act on state divorce orders. Given the wide dispersal of our armed forces this could make enforcement of a judgment difficult or impossible. A servicemember may be deployed for extended periods in jurisdictions where state judgments would have no effect, if not for the USFSPA.
Pensions and Other Benefits
Pensions are a significant asset involved in military divorces and alimony. Servicemembers may retire earlier than many civil employees, and with a more generous retirement package than might be acquired elsewhere. The USFSPA directs the former spouse's eligibility to divide this asset.
To qualify for the division of retirement pay under the USFSPA the couple must have been married for at least 10 years, during which time the servicemember must have performed at least 10 years of creditable military service.
The USFSPA also permits former spouses to continue accessing other benefits such as military continued health care benefits, commissary, and exchange following their divorce. In order to qualify for these benefits the couple must have been married at least 20 years and the servicemember must have completed at least 20 years of creditable military service during that same period.
If the couple was married 20 years and the servicemember had served at least 20 years of creditable service, but the marriage only overlapped the service by 15 years, the former spouse would have limited access to military benefits.
Enforcement of Military Divorce and Alimony Orders
Another complication presented by military divorces and alimony orders involves enforcement of the order. Servicemembers may be tempted to avoid payment of their alimony orders, since they may be frequently outside of the jurisdiction where the order was entered.
Fortunately for those seeking enforcement, the failure to support dependents is considered a "service-discrediting" form of misconduct that can result in the servicemember being ordered to meet their obligations and ultimately potentially subjecting them to administrative discharge proceedings if they fail to address their arrearages .
Where an alimony order exists and there is an arrearage equal to or more than two months the former spouse of the servicemember may be eligible to seek an "involuntary allotment" garnishing the wages of the servicemember. Involuntary allotment, unlike the garnishment normally available, includes basic pay and many forms of special pay and allowances in its definition of "disposable earnings."
Get Advice About Your Military Divorce and Alimony
There are many procedural complications that can arise in a military divorce and a proper understanding of your rights can help ensure that alimony orders are fair and fairly administrated. Issues relating to a military divorce and alimony can be simplified by getting professional advice. The assistance of a military divorce lawyer can help ensure that you proceed confident that you know your rights.
Contact a qualified military law attorney to help you with military-related issues.