Gene
Posted in Family Law April 26, 2018
Military divorce differs from civilian divorce in many ways. For example, when active members of the military—or their spouses—file for a divorce, they are subject to special and unique circumstances. When filing for a divorce, there are several elements that the military influences that you need to consider. Including:
- The Servicemembers Civil Relief Act (SCRA)
- Where the divorce can be filed
- Child custody and visitation
- How support is calculated
- How divorce affects military pay
- Property and retirement division
Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act (SCRA) is a federal law that can affect your divorce or child custody case in many ways. The SCRA protects servicemembers from having a court order entered in their absence due to military services. This allows the servicemember to focus on their missions abroad. Because of this, the SCRA allows servicemembers to request a delay in any court or agency proceeding that might affect their relationships with their children where they are unable to appear, due to their military service.
While the SCRA is good for servicemembers, it can be frustrating for non-military spouses if servicemembers delay proceedings. However, the SCRA protects servicemembers from courts issuing permanent decisions until they can arrange to be there. Courts must balance the rights of military and civilian spouses.
Where Can I File My Divorce?
For many military spouses, the difficult decision to divorce may arise in a state where you have just moved. In some cases, one spouse may have moved back to the state they are from originally from. Courts need to establish jurisdiction over you and your spouse to determine your case. Consult with a family law attorney to determine if Texas is the right state to file for divorce.
Active Duty Child Custody and Visitation
State law determines child custody and visitation. Active-duty families face unique challenges that civilian families do not. For example, active duty service members may receive orders that station them at a base in a different state or deploy to various parts of the world. This can put a strain on existing arrangements and create stress for parents and children.
A qualified Military Divorce Attorney can help you navigate these circumstances and advocate for make-up time upon a return from mobilization or deployment.
How is Military Divorce Support Calculated?
Child Support
Active-duty servicemembers can be legally required to support their children just like anyone else. In Texas, all income you receive, including base pay, BAH, BAS, and even disability pay, is used to calculate the state-guideline child support amount.
Additionally, parents will be required to maintain health insurance for the child. If the person ordered to pay child support does not have health insurance available to them at a reasonable rate, the person ordered to pay child support may be required to reimburse the parent paying for insurance.
Spousal Support
Spousal support is very fact specific to each case. In Texas, a spouse may be eligible to receive temporary spousal support while the divorce is pending and spousal maintenance once the case is finalized.
How Will Divorce Affect My Pay?
Divorce and BAH
BAH allowance post-divorce depends on whether or not you are the primary custodian of the children, pay child support, and/or live in single-type Government quarters. If you are the primary custodian of your children, then you are authorized BAH at the with-dependent rate if not assigned adequate family-type Government quarters. If your former spouse is the primary custodian and you are paying child support (at least in an amount of your BAH-DIFF rate) you are authorized BAH at the with-dependent rate if not in Government quarters or BAH-DIFF if assigned single-type Government quarters.
BAH-DIFF is the housing allowance amount for a member who is assigned to single-type quarters and who is authorized a BAH solely by reason of the member’s payment of child support. A member is not authorized BAH-DIFF if the monthly rate of that child support is less than the BAH-DIFF amount. The BAH-DIFF amounts, originally calculated in 1997, are updated annually based on changes in the Basic Pay tables. For more information, contact your servicing finance office.
Is My Military Retirement Subject to Division?
Property and Retirement
All property, including retirement, acquired during the marriage is subject to division by the Court. Former spouses might receive a portion of the service member’s retirement pay directly from DFAS if the couple’s marriage lasted at least ten years and the service member performed at least ten years of creditable military service during the marriage. If you were married less than ten years, the service member spouse might be required to pay the former spouse a portion of their retirement directly to the former spouse post-retirement.
Former spouses can continue accessing military benefits (healthcare and commissary) if the couple’s marriage lasted at least 20 years and the servicemember performed at least 20 years of creditable military service during the marriage.
In both child support and spousal support, the military requires servicemembers to meet their obligations described in the divorce decree or court order. When a servicemember does not meet those obligations, they may face military discipline and in addition to enforcement through civil court.
Please contact The Carlson Law Firm for a free consultation with a qualified Military Divorce Attorney to discuss your legal options today.
