military divorce

How Does a Military Divorce Differ from a Non-Military Divorce?

Navigating through a divorce is often a daunting, emotionally charged process, and it can become even more complex when one or both parties are military personnel. Military divorces involve unique considerations and regulations that can make the process feel overwhelming.

Military-Specific Factors in Divorce

There are specific factors that set military divorces apart from their civilian counterparts. These involve but are not limited to, aspects such as residency and filing requirements, division of military retirement pay, and matters pertaining to child custody and support. Understanding these nuances is vital for anyone embarking on the military divorce process.

Deployment and Service Obligations

Military personnel frequently experience deployment periods, which can span several months, sometimes years. This can significantly complicate divorce proceedings, particularly when it comes to child custody and visitation rights.

The Servicemembers Civil Relief Act (SCRA) protects service members' rights while on active duty, including postponing certain legal proceedings. However, it can also make the divorce process more protracted and challenging to navigate.

This act provides legal protection for military members while on active duty. It allows for the postponement of legal proceedings to ensure that military service does not impair the civil rights of service members.

Division of Military Benefits and Pensions

One of the most substantial assets in a military divorce is the military pension. Under the Uniformed Services Former Spouses' Protection Act (USFSPA), state courts can award a portion of the military retiree's pay to the former spouse. The division is not automatic, and the exact amount awarded can vary based on several factors, including the length of the marriage and the overlap with the service member's military service.

The service member's Thrift Savings Plan (TSP), which functions similarly to a 401(k) for military personnel, may also be divided as part of the divorce settlement. In some circumstances, the former spouse may also be entitled to continued healthcare benefits and commissary privileges.

The assets that can be at issue during a military divorce include the following:

  • Military pension: The military pension can be divided between the service member and the former spouse. The exact division will depend on multiple factors, such as the length of the marriage and the overlap with the military service.
  • Thrift Savings Plan: The service member's TSP can also be divided as part of the divorce settlement.
  • Healthcare benefits and commissary privileges: Under specific circumstances, the former spouse may be entitled to continued healthcare benefits and commissary privileges.

It is essential to note that each military divorce is unique, and the division of military benefits and pensions may differ based on various factors. Therefore, seeking advice from legal counsel to understand the implications and make informed decisions is recommended.

Determining Jurisdiction

The issue of jurisdiction can add another layer of complexity to military divorces. It is important to understand that jurisdiction refers to the court's authority to make decisions about divorce, child custody, and division of marital property. For civilian divorces, the jurisdiction is generally straightforward, typically where the couple resides or where they file for divorce. However, for military personnel, the matter of jurisdiction can be a challenging issue due to frequent relocations and deployments.

A military couple might have several options when it comes to determining jurisdiction. They might choose to file for divorce in the state where the military member is stationed, where the military member claims legal residency, or where the nonmilitary spouse resides. The choice of jurisdiction can significantly impact the division of military pensions and other aspects of the divorce settlement. It's advisable to consult with an attorney experienced in military divorce to help determine the most advantageous place to file.

Child Custody and Visitation Issues

In military divorces, child custody and visitation issues can become complex due to the unique circumstances associated with military service, like frequent relocations and deployments. Military parents may struggle to maintain consistent contact with their children, particularly during active duty. This can make drafting a standard visitation schedule challenging and may necessitate more flexible arrangements to accommodate the service member’s obligations.

However, it's important to note that a service member's military status does not automatically disadvantage them in custody disputes. Courts are primarily concerned with the best interests of the child. While a parent's military obligations are considered, they do not automatically dictate the outcome of the custody arrangement.

Issues that can impact child custody and visitation in military divorces include:

  • Frequency and duration of deployments: Long and frequent deployments can impact the stability required for child custody and visitation norms.
  • Relocations: Regular relocations can disrupt established visitation schedules and pose a challenge to the nonmilitary parent.
  • Communication during active duty: Maintaining regular contact with the child during active duty might be considered while deciding custody and visitation rights.
  • Potential of future deployment: The likelihood of future deployments might also be a factor when deciding custody and visitation rights.

Due to these complexities, it is crucial for military parents going through a divorce to have a clear, well-drafted parenting plan. This plan should account for potential deployments and other military-related contingencies, ensuring that the child's best interests are always prioritized.

Support and Alimony Considerations

Alimony, or spousal support, is another critical aspect of any divorce proceeding, including military divorces. The purpose of alimony is to limit any significant economic impact on a non-wage-earning or lower-wage-earning spouse. Like civilian divorces, the court may order temporary or permanent alimony in a military divorce. The amount of alimony depends on a range of factors, such as the length of the marriage, the earning capability of both spouses, the standard of living during the marriage, and the presence of minor children.

In addition to alimony, child support is another significant consideration in military divorces. The military has stringent rules regarding the support of military dependents in divorce cases. Just like civilian parents, service members must provide adequate support for their children. The amount of child support a service member must pay is not set by the military but by state guidelines. However, the military does enforce these orders, and failure to comply can result in disciplinary action.

Key considerations related to support and alimony in military divorces include:

  • Duration of the marriage: Longer marriages may result in higher or more prolonged alimony payments.
  • Economic disparity between spouses: If there's a significant income disparity, the higher-earning spouse may be required to pay alimony.
  • Standard of living: The lifestyle maintained by the couple during the marriage is a factor.
  • Presence of minor children: Having minor children may impact the amount of alimony.
  • State guidelines: The determination and enforcement of child support payments follow state guidelines.
  • Military enforcement: The military enforces child support and alimony orders, and non-compliance can result in disciplinary action.

Military Divorces in Ohio

In Ohio, military divorces are subject to the same laws as civilian divorces but with additional guidelines from the aforementioned federal acts. When a service member or their spouse decides to pursue a divorce, the first step is to file a petition for divorce in the county where either party resides. The Ohio courts can divide the military pension as part of the marital property division if the service member was married for at least ten years while performing at least ten years of military service.

Here are a few key considerations:

  • Grounds for divorce: Ohio is a mixed state, meaning spouses can file for divorce on either fault-based or no-fault grounds. Incompatibility or living separate and apart without cohabitation for one year are common no-fault grounds, while fault-based grounds may include adultery, neglect, or cruelty.
  • Child custody and support: Ohio courts prioritize the child's best interests when deciding custody and visitation. The court may consider the military parent's deployment schedule or potential for relocation. Ohio uses an income shares model for calculating child support, where both parents' incomes are considered.
  • Spousal support: In Ohio, alimony is not guaranteed. The court considers several factors, including the duration of the marriage, the standard of living during the marriage, and each party's assets and earning ability.

In addition, Ohio courts adhere to an equitable distribution model for dividing marital property, including military pensions. This does not always mean a 50/50 split but rather a division that the court deems fair and just. As always, it is best to consult with an experienced military divorce attorney to understand the specifics of your situation.

Legal Resources and Protections for Service Members

Service members facing a military divorce are not left alone to navigate the complex procedure. Various legal resources and protections are specifically designed to safeguard the interests of military personnel during such a challenging time. These provisions aim to ensure that the duties and unique circumstances of military service do not disadvantage service members in divorce proceedings.

The Servicemembers Civil Relief Act (SCRA)

The Servicemembers Civil Relief Act (SCRA) is a federal law that provides certain protections for service members, including those regarding divorce proceedings. The SCRA allows courts to postpone divorce proceedings while the service member is on active duty and for up to 60 days following active duty at the court's discretion. This stay is intended to ensure that military service does not impair the service member's legal rights. However, a court may grant a stay of proceedings only if it determines that the service member's duties prevent them from participating in the litigation.

Key provisions of the SCRA relevant to divorce include:

  • Stay of proceedings: This allows courts to delay divorce proceedings during active duty and up to 60 days thereafter.
  • Default judgments: The SCRA protects service members from being held in default (i.e., automatically losing because they didn't respond to a lawsuit) while serving on active duty.
  • Statute of limitations: The SCRA suspends the statute of limitations for civil actions, such as divorce, during periods of active duty.

However, it is important to note that the SCRA does not protect a service member from all divorce-related actions. For instance, a court may still grant interim relief to the non-service member spouse, such as temporary child custody or spousal support orders, during the stay. Therefore, a service member should still seek legal counsel to ensure their rights are adequately protected even when proceedings are delayed.

Legal Assistance Available for Service Members

At Crossman & McNamee, LLC, we understand that military divorces come with unique challenges and complications. As seasoned attorneys with a deep understanding of military law, we provide compassionate legal counsel tailored to your situation. We can help navigate complex issues such as the division of military pensions, the determination of jurisdiction, and the implications of deployments on child custody and visitation schedules.

In addition to our in-depth understanding of military divorce, we bring empathy and dedication to every case. We're committed to protecting your rights and interests, ensuring you're not disadvantaged due to your military service. Our team will work tirelessly to achieve a fair resolution, whether it involves rigorous negotiations or standing up for you in court.

At Crossman & McNamee, LLC, we also offer comprehensive post-divorce guidance. This can include assistance with modifications of child support or custody, enforcement of orders, and advice on any legal issues that may arise after the divorce is finalized. With our firm by your side, you can have peace of mind knowing that your case is handled by professionals who genuinely care about your well-being and future.

If you are a service member facing divorce, contact us online or call us at (937) 468-3796 for more information or to schedule a consultation with our experienced attorneys.