From the Homefront: Navigating resources in a military divorce

Divorce for military couples have an added layer of confusion because of the special legalities of pay, benefits, and states of residence that civilian couples don’t have to negotiate. For families considering divorce or trying to figure out how to go about it, there are some things to know from the outset. This article isn’t legal advice, just informational guidance.

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Twice a month, Coast Guard All Hands will feature “ From the Homefront ,” a column for Coast Guard spouses by Coast Guard spouse Shelley Kimball. Shelley has been married to Capt. Joe Kimball, chief of the office of aviation forces at Coast Guard headquarters, for 16 years. She currently serves on the board of directors for the Military Family Advisory Network .

Written by Shelley Kimball

Sometimes marriage isn’t forever.

Divorce for military couples have an added layer of confusion because of the special legalities of pay, benefits, and states of residence that civilian couples don’t have to negotiate.

And though there has been a decrease in military family divorce rates (which is calculated through the personnel and benefits information), marriage to a service member carries with it unique challenges. Deployments, frequent moves, isolation, and active duty members absent from family for long blocks of time can all wreak havoc on marriage stability.

So for families considering divorce or trying to figure out how to go about it, there are some things to know from the outset. This article isn’t legal advice, just informational guidance.

When it comes to legal problems, the Coast Guard (or any other branch of service) can provide help, said Christopher Dunne, the chief of Coast Guard Legal Assistance. Military legal offices can give active duty members, Reserve members on active duty, and spouses legal assistance.

Spouses are included because they remain dependents until the divorce is final. That means the services the military provides don’t end until the marriage official ends. Families can get legal assistance for domestic issues, which include divorce, and they can meet with an attorney who can answer questions and explain how the process works.

One caveat: If a legal office is serving one spouse, then it may not be able to assist the other spouse in the same legal office because it would be a conflict. However, the office should help the other spouse find legal assistance elsewhere, so neither party is left without help. That may be from another Coast Guard office, a legal office from another branch of service, or a civilian attorney.

The process of divorce can generally be split into four parts: termination of the marriage, custody arrangements, financial support and division of assets. Legally ending the marriage is the least complicated.

“That part tends to be the easiest, but not emotionally,” Dunne said.

Couples with no children and few assets can go through the process relatively quickly, Dunne said. Depending on state law, it may be as quick and efficient as filling out some forms and one or two appearances in court.

It gets more complicated when couples have to iron out terms of custody and division of assets. But a legal assistance attorney can be a helpful first stop to figure out a plan.

“A lot of times when they are coming to see me, they have had the ‘We’re through’ fight, and they don’t know where to go from there,” Dunne said.

How to hire an attorney?

If the dissolution is more complicated, then an attorney is the next step.

Dunne recommends first using the Armed Forces Legal Assistance locator, which finds a legal assistance office by location. Military families can go to any service branch’s legal assistance office. The Coast Guard has 11 full-time legal assistance offices – start there if it is geographically close. If not, go with the closest one from the locator.

The Coast Guard Support website has a section on legal services and the legal office that serves the duty station might be able to help. Also, the American Bar Association has a legal guide for military families, including how to find representation.

When hiring an attorney, look first for someone who has a reasonable amount of experience in family law and who has had a fair amount of practice in the jurisdiction, or the geographical area of the court (states laws differ, so it is important that the attorney knows the laws of the location). It is also helpful to have someone who is aware of the special considerations in a military divorce, Dunne said.

“They teach us to look stuff up in law school,” Dunne said, “so the first two are more important.”

Where a divorce is filed matters

The transient military lifestyle blurs the lines of where we actually live. Each state may have different laws about how to divide assets in a divorce, custody rules, or how long a couple must be separated before the divorce can be finalized. When civilians file, the state from which they are physically filing would guide the divorce. Military families may physically live in one state, but could be legal residents of another.

Generally the person who files for divorce first has to file in a state they either live in or in which they are legal residents. (So you can’t pick a random state that has a set of laws you like better.)

How are assets divided?

This is a huge question with a lot of variables. If a couple doesn’t decide how to split up their assets themselves, a state court will make the decision.

Military life is unique in that often spouses give up their careers, earning potential, and ability to develop retirement benefits when they follow the active duty member in military moves. Spouses can be eligible for a portion of retirement benefits after divorce.

Spouses are protected under the Uniformed Services Former Spouses’ Protection Act, or USFSPA, which does two things: It lets state courts give spouses a portion of retirement pay, and it makes it possible for the Department of Defense (DoD) to enforce divorce decrees that divide the retirement pay. It doesn’t mean that retirement benefits are automatically part of the division. It means that when a state court determines how the military couple’s assets will be divided, it can decide to incorporate retirement pay into the equation. And then, if it does, the DoD can make sure the division works the way the court decided.

One equation that can be confusing is the 10/10 rule. It requires that to receive a portion of an active duty member’s pension directly from the government instead of getting it through the ex-spouse, the couple must have been married 10 years and the military member completed 10 years of creditable service during that time. So, for example, if a couple has not been married 10 years, a spouse could still get a portion of the retirement benefit, but it would not come directly through the Defense Finance and Accounting Service, it would have to come from the retired active duty member.

Military members also have some protections. If the military member in the couple is still active duty, then the Sevicemembers Civil Relief Act applies. One of the main things it does in the context of divorce is that it ensures that court orders are not entered against active duty members in their absence, and it allows for hearings to be delayed if needed.

What about benefits like healthcare or access to the base or commissary?

Spouses who get to keep these benefits fit a specific formula. Figuring this out depends on three things: how long the active duty member has been in service, how long the couple has been married, and how many of those years overlap.

Spouses who have been married to active duty members who have served more than 20 years, and they were in the marriage for those 20 or more years of service, can get full, free, healthcare benefits, and access to the commissary and exchange. These are called 20/20/20 spouses in military parlance. The benefits last until the spouse either remarries or gets employer-sponsored medical insurance.

Those who have fewer on any of those accounts will get less access. For example, spouses whose service members have served 20 years, they have been married 20 years, but only 15 of those years have been active duty years will receive medical benefits only for one year to transition. (They are considered 20/20/15 spouses).

Spouses who do not meet these 15- and 20-year limits are not eligible for continuing benefits.

What about child support and custody?

Again, there are lots of variables here. And the state law in which the divorce was filed will be the ultimate authority in how child support and custody works.

Also, the SCRA can come into play again here, too. If the active duty member’s service interferes into custody decisions, the custody agreement can be delayed. Some other common protections the SCRA grants active duty members, according to the American Bar Association, is that absences due to military service cannot be the sole basis for custody decisions, custody rights might be extended to other family members if the active duty member is away, and permanent changes shouldn’t be made to the custody agreement if the custodial parent is away for military duty.

For those couples who know custody will be a difficult issue, find an attorney who understands military life. Most states can’t use military deployments as a reason to amend custody. Stability is always in the best interest of the child, but stability can also be found in being part of the military community. There is also value in that, Dunne said.

“So if you get an attorney who is familiar with the military, they will be able to explain it a little better,” Dunne said.

Because there are so many variables, the divorce process can be complicated. Legal assistance is available to military families, and that advice might mean a more efficient pathway through an emotionally difficult experience.

“It’s a good idea to get legal advice very early in the process,” Dunne said.

Resources:

Portrait of Shelley Kimball.
Portrait of Shelley Kimball.

Finding an attorney: Dunne recommends starting with the Armed Forces Legal Assistance locator and the list of Coast Guard legal assistance offices. Also helpful might be Coast Guard Support section on legal services or the American Bar Association has a legal guide for military families.

Division of assets: State laws will guide the way assets can be divided, but here are a few places to begin. Understanding the way the Uniformed Service’s Former Spouse’s Protection Act works is a start. Also, knowing where a spouse fits in the rules regarding years of marriage and years of service: the 10/10 rule is for getting benefits paid directly from the government. The Defense Finance and Accounting Service has some specific frequently asked questions that are informative.

Military benefits: Retaining access to Tricare and an ID card to use base facilities like the commissary and exchange will depend on years married and the number of years the service member was in active duty. The 20/20/20 rule helps a spouse retain all benefits, and the 20/20/15 rule means that a spouse can retain healthcare coverage for one year. Tricare has an easy to follow explanation about it, too.

General information: A few websites have helpful general information about military family divorce. Take a look at Military OneSource, National Military Family Association, Stateside Legal, and the American Bar Association.

The views expressed herein are those of the author and are not to be construed as official or reflecting the views of the Commandant or of the U.S. Coast Guard.

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