Whether active or reserve duty, or the spouse of a service member, you might not have the answers to the questions a stressful military divorce can raise. Though not legally distinct from a civilian divorce, the issues of property distribution and custody look a bit different. If you’re having trouble finding answers to questions related to military divorce, read ahead to learn about:
- Distributing military benefits and knowing who gets what (and how much)
- Setting up a future for your kids through a thoroughly prepared Family Care Plan
- How a lawyer can help you best set yourself up for a strong future.
Property Distribution with Benefits
When approaching divorce either as a service member or a spouse, it’s important to know how to manage and distribute your property. Going in, though, be sure to keep a few things in mind:
- Military service is sometimes unpredictable; you may need to switch locations during the period of your divorce, which can put a strain on the process for you and your spouse.
- In military divorces, there are federal statutes in place to address issues of child support, spousal support, and pensions.
- Should you be on active duty, the Servicemembers Civil Relief Act (SCRA) protects you from civil suits and divorce proceedings for the extent of your deployment and for 60 days afterwards.
That being said, there are also a few rules to know specifically with regard to property distribution: the 10-Year Rule and 20/20/20 Rule.
The 10-Year Rule applies to direct retirement payments made through the Defense Finance and Accounting Service (DFAS). For an ex-spouse to receive payments post-divorce, you must have been married for at least 10 years, overlapping with 10 years of military service.
If you don’t meet these qualifications, it doesn’t mean you are ineligible to receive retirement payments. The maximum amount of pension an ex-spouse can receive through DFAS is 50% of the retirement; depending on your marital situation, you may come up with criteria specific to your divorce agreement.
In this, there are a few methods spouses use when calculating their share of marital assets:
- Net present value: immediate distribution to your ex-spouse based on a calculation of all present benefits;
- Deferred distribution: a share amount is calculated at divorce, then deferred until the service member retires; and
- Reserve jurisdiction: a share amount for the ex-spouse is calculated upon retirement.
On the other hand, the 20/20/20 Rule applies to TRICARE health benefits and other privileges. The rule states you may be eligible to receive benefits through TRICARE should you not remarry if three out of the following three provisions apply to you:
- You were married to your ex-spouse for at least 20 years;
- Your ex-spouse served in the military for at least 20 years; and
- Your marriage overlapped the time in service by at least 20 years.
There also exists a 20/20/15 Rule under TRICARE with the same terms, except the last includes an overlap of 15 years. Under this, you can collect benefits for up to 12 months after your divorce.
You might have other benefits specific to your life and time in the military in need of division, as well; keep in mind, you can discuss how to report and account for these with a lawyer experienced in divorce, civilian, and military. Firms like JC Law, serving MD, VA, PA, and DC, can provide crucial guidance in navigating these complexities. James E Crawford, Jr. and his team understand the intricacies of military divorce and can help you protect your rights.
Here’s a table summarizing the key rules:
| Rule | Description |
|---|---|
| 10-Year Rule | 10-Year Rule |
| 20/20/20 Rule | Applies to TRICARE benefits. Requires 20-year marriage, 20-year military service, and 20-year overlap. |
| 20/20/15 Rule | Similar to 20/20/20 Rule, but with a 15-year overlap for TRICARE benefits for up to 12 months. |
Family Care Plans and Their Importance
As we recognized above, your living arrangements in the military could change at a moment’s notice. Parenting plans help former couples allot time between family care providers, your ex-spouse, and you in the event of short- and long-term changes to living arrangements.
Communication is key post-divorce. Though all are different, divorces have profound effects on children. With military service, it isn’t uncommon for one parent to be out of the house for an extended period of time, depending on the circumstances. A divorce can add a layer of distance between a child and their parent if there’s less of a chance they’ll see them without having to travel far distances.
The military, in most cases, requires service members to submit family care plans to their commanding officer following a divorce. Not every divorcing couple needs a family plan, except in the following situations:
- A service member with a child under 19 years old shares custody with a partner, both unmarried;
- Both parents are service members with a child under 19; or
- A service member is the sole caretaker for a child under 19 or an adult family member unable to provide care for themselves.
In said plan, you must include a few important pieces of information.
First, list any caregivers who might care for your child in case of your absence. This person must be at least 21 years old and have all pertinent information on hand in preparation for future care. Something important to note is that you may need multiple caregivers to account for different situations, as in short and long-term caregivers. Also, be sure to include information about your child’s other parent—your ex-spouse, if applicable.
Next, you need to account for both financial support and transportation as they relate to the child’s care during your absence. Another aspect of this showing you’ve given powers of attorney to your caregiver.
It’s important to note there’s a difference between guardianship and power of attorney; in the event of your incapacitation, the latter of the two will allow the caregiver of your choice to make important financial decisions for you and your child. This is a provision in place in the event of any extenuating circumstance that may arise during the period of a person’s service.
Finally, be sure to include who you want to take custody of your child in the event of your death. If your ex-spouse is your child’s other legal parent, then they will take custody. However, you may designate another person along with your reasons for including them if you choose.
Drafting up a plan of this nature may feel daunting, given how many important decisions it holds. However, taking as many precautions as you can in the present ensures your child’s safety and security in the future. As we’ve said in past articles on our blog, it’s best to work with your spouse as equitably as possible during this portion of the divorce process. Coming to an agreement on how to safeguard and care for your child can help dispel any stress from the uncertainty of divorce, while giving you the chance to work with your spouse rather than against.
Your Attorney: Someone to Sort Out the Hard Details
Divorce is hard. Don’t do it alone.
A skilled family lawyer with a bevy of experience in handling divorce cases is your key to a smooth transition to the next part of your life.
Like we’ve said, process-wise, military and civilian divorce is very similar. However, when your benefits come into play and you’re not sure how to negotiate visitation, your lawyer is there to help.
You might be familiar with the Judge Advocate Generals Corp, or JAG Corp. JAG attorneys often give general legal advice and represent members of the military in court martials and other punishment proceedings; they cannot help you prepare divorce documents. Divorce is a state legal issue, not a military one.
As James E. Crawford, Jr. accurately states:
“Navigating a divorce, especially one involving military service, requires a deep understanding of both state and federal laws. Don’t underestimate the value of having an experienced attorney by your side.”
No fear, though: skilled and compassionate attorneys at firms such as JC Law are here to give you the best representation and advice you can get during the divorce process. If you have any questions about divorce as a service member, particularly if you reside in MD, VA, PA, or DC, contact our offices for a free initial consultation. You deserve a strong advocate in your corner.
