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Military Divorce

Mr. Benjamin has had his office within a mile of McChord AFB and close to Fort Lewis since 1998. He began practicing as a lawyer in 1995. Mr. Benjamin has handled more than a thousand military divorces—many involving issues of child custody. He has represented military members (or the non-member spouse) from a "fuzzy" to field grade officers.

It is important that your chosen attorney be familiar with the special circumstances of military divorce. The attorney needs to understand the military's sensitivity to allegations of adultery that is not a factor in civilian court.

Military regulations which apply to family support (AR 608-99) and retirement orders are complicated and can have lasting impacts. Your attorney needs to understand that BAH and BAS are nontaxable allowances and how to most effective present these to the court. Knowledge of the 10/20 15/20 and 20/20 rules as they apply to retirement payments and health care rights are critical as well.

Any good military divorce attorney knows how to effective use the member's chain of command and the Inspector General's Office to benefit the non-member spouse or how to shield the member's chain of command or the Inspector General's Office from a vengeful non-member spouse if representing the military member.

Military Divorce FAQ

Here are some answers to common questions regarding your military divorce.
Please note: we provide free consultations to military service members and spouses. If you have questions or concerns regarding your particular situation, we would be glad to speak with you @ (253) 201-0308.

Q: How does a military divorce differ from a civilian divorce?
A: Military divorces can differ from civilian divorce cases when it comes to domicile or residence requirements for filing, obtaining service upon an active duty spouse, compliance with military rules and regulations, and the division of the military pension, often the largest asset.
Q: Since I or my spouse are in the military can I or my spouse file for divorce in Washington?
A: Most service members have been married in one state and have lived in several other states or countries. Washington law requires that at least one of the partners to the marriage be a ashington resident for at least 90 days before filing the divorce action.
Q: How will custody of my child be determined in a military divorce?
A: Military life - with TDY’s, deployments, and often long work hours - presents great obstacles to the single parent. That’s not to say that a parent on active duty cannot gain custody. The court will look closely at each parents demonstrated ability and willingness to care for the child. A mere desire to live with ones kid’s is not enough. The court will not consider whose “fault” the divorce resulted from, but will seek custody arrangements that are in the best interests of the child. For a serviceman who is married to a civilian to seek custody over the other parties wishes, he or she must have, at the very minimum, a clear plan for how the child will be cared for in the context of military life.
Q: How will my child’s visitation with the non-custodial parent be determined in a military divorce?
A: The familiar formula for non-custodial parent’s visiting the children “every other weekend” seldom works after PCS. Both parents have an interest in making visitation work; because of this the parenting plan in military divorces must be tailor made to fit the family’s circumstances.
Q: How will child support for my child be determined in a military divorce?
A: Washington provides statutory guidelines for the calculation of child support payments. The calculation is determined by a formula which considers the income of both parents, as well as the cost of day care, if any. Unfortunately, there’s a bit more to it than calculating arithmetic. Crunching the numbers is easy. Deciding which numbers to use is harder. If Husband quits his high-paying job to start a business, and Wife gets a second job to make ends meet, which income figures should be used? In the military, base pay represents only a portion of the financial benefit received. Most of a soldier’s “pay” comes in the form of “allowances”. It’s generally accepted that all LES items are considered income for calculating child support. However, the child support order may itself change the amount of the military member’s allowance entitlement. This is especially true in cases in which both spouses are on active duty. Determining proper child support in military cases demands clear thinking and an understanding of the military pay system.
Q: How can I expect alimony to be determined in a military divorce?
A: Alimony (or “spousal maintenance”) is a periodic payment of money by one spouse to the other, usually on a monthly basis. Alimony is directed towards the well being of the receiving ex-spouse. Alimony may be awarded in order to give the receiving party an opportunity to look for a job, update work skills, stay at home with small children or attend school. The award of alimony is not automatic, and where the financial position of the parties is about equal, alimony may not be appropriate at all. Whether or not it will be awarded depends on the parties’ financial conditions, their earning capacity and the circumstances of the marriage.
Q: How does a military divorce effect my base housing?
A: If the service member no longer resides in quarters, his family must move off base. The family is provided time to move but will probably have to pay for the move itself. Once the member takes definite action (i.e renting an apartment or filing a divorce action), a termination letter should be sent to the housing office.
Q: How does a military divorce effect my basic allowance for housing?
A: The old Basic Allowance for Quarters + Variable Housing Allowance system has been changed to a Basic Allowance for Housing (BAH) System. Consult your Military Pay Office for details. Children still qualify as dependents for setting the BAH rate, even if the civilian parent has custody after the divorce. (If the service member pockets the increased BAH and fails to pay child support, he or she may face UCMJ punishment).

How much support must a with-dependant rate BAH-receiving spouse pay to his estranged wife for spousal and child support? In the absence of a court order, Uncle Sam (in the guise of a unit commander) may require that the service member pay a portion of his check for support. There is significant variation of the amount to be paid. Generally, the minimum amount to be paid would be the difference between the single rate and with dependent rate for the particular service member. Once court action is instituted the court order will set forth the support amount.
Q: How does a military divorce effect my right to the military pension?
A: The Uniformed Service Former Spouses’ Protection Act, passed by Congress in 1982, gives former spouses of military members the right to a share of the military member’s retired pay. In Washington, a non-vested military pension is held to be marital property. The value of the military pension is based upon the amount available when the pension holder retires, not when the divorce occurs. For example, if a military couple divorces after 15 years of marriage and the husband is a major, and retires as a colonel after 26 years of service, then the wife entitled to one-half of the monthly benefits at the time of the retirement as a colonel times 15/26.

Of course, no court can order a member to apply for retirement, or to retire at a particular time in order to effectuate any payment. However, the court can award the member’s spouse a share of retired pay which will become payable when the member retires. In practice, the member and the spouse may come to an agreement on the present value of the military pension and come to a settlement. This eliminates the uncertainty of when the spouse will receive money and enables both parties to get on with their lives.

Q: How does a military divorce effect my Survivor’s Benefit Plan?
A: SBP is a retired pay program which allows a retiring serviceman to provide for the support of his/her spouse (and minor children) upon his/her death. If he/she elects full spousal coverage, Uncle Sam deducts money from his/her retirement check every month. When the retiree dies, the military pays his/her surviving spouse 55% of his/her retired pay until he/she reaches age 62, when the amount is reduced to 35% of retired pay.

SBP can play an important role in military divorce cases. A divorced spouse can be covered by SBP. Coverage does not occur automatically, but the law recognizes an ex-husband/ex-wife as a potential beneficiary. This can be a hotly contested issue in a military divorce case, since payments for SBP coverage can take a big chunk out of a retirees check.

There’s a one-year statute of limitations for doing military paperwork after the SBP coverage is awarded in a military divorce case. Just because the military continues to deduct the SBP premium after the divorce doesn’t mean you are still covered. If an SBP “former spouse” request has not been
filed with the proper military office, upon the death of the retiree Uncle Sam will simply refund the premiums to the deceased’s estate and pay the former spouse nothing.

Q: How does a military divorce effect my SGLI?
A: When service members designate their government insurance to be paid “by law”, an ex-spouse is automatically excluded as a beneficiary. The ex-spouse may be designated by name as a beneficiary (for example to guarantee her an income after the termination of alimony upon his death) but there are hidden hazards in this practice. There is a natural tendency for a service member to forget about court-required insurance and revert back to the “by law” designation.

Unlike commercial insurance, SGLI will be paid to the “by law” beneficiary even if the court order says otherwise. If a party is required to maintain SGLI coverage for the spouse or children, it’s a good idea to require that he or she also execute a special power of attorney authorizing the other party to examine in his or her military records to ensure that the beneficiary election does not, through choice or mistake, revert to the “by law” election.

Q: How does a military divorce affect my will and other documentation?
A: Divorce alters the legal effect of wills made during the marriage. Both wills should be rewritten. This is a good time to review all your documents, including life insurance beneficiaries, “pay on death” beneficiaries on certificates of deposit, emergency data cards at work, and powers of attorney.

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Law Offices of Jason Benjamin
Located at 10116 36th Avenue Court Southwest, Suite 310, Lakewood, WA 98499.
Phone: (253) 201-0308.
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