02 Dec Dividing Property in a Divorce With an Active Service Member
Divorce is rarely a straightforward process. This is even more true when it involves an active service member. The unique nature of military life—characterized by frequent relocations, specific benefits, and intricate legal frameworks—can make dividing property in a divorce with an active service member particularly challenging. To achieve a fair resolution, you must understand the complexities of this type of divorce. Ensure the best outcome for your divorce by learning more about the nuances of property division and military service members here.
Understanding the Unique Challenges of Military Divorce
Navigating a military divorce requires an understanding of several unique factors that distinguish it from civilian divorce proceedings.
Frequent Relocations
First, frequent relocations can complicate the establishment of residency, which is vital for determining the appropriate jurisdiction for filing divorce.
Allowances
Moreover, service members’ pay structures can include various allowances. These allowances can consist of Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS). Courts must carefully assess these allowances when calculating income for support purposes.
Specific Laws
Additionally, the division of military pensions and benefits necessitates specific knowledge of military regulations and federal laws. These laws include the Uniformed Services Former Spouses’ Protection Act (USFSPA), which we will discuss in detail next.
The Role of the USFSPA
The USFSPA is a federal law that plays a crucial role in divorces involving military personnel. Enacted in 1982, the USFSPA grants states the authority to treat military retirement pay as marital property, allowing for its division between spouses in the event of a divorce.
This state authority provides a legal avenue for former spouses to receive a portion of the service member’s retirement benefits, contributing to their financial security after the divorce. The USFSPA also outlines the guidelines for entitling a former spouse to direct payments from the Defense Finance and Accounting Service (DFAS).
By bridging the intersection of military and civilian legal systems, the USFSPA ensures that the unique aspects of military life are considered in divorce proceedings. The goal is achieving fairness and balance in the division of assets.
Overview of Military Benefits and Their Impact on Property Division
Military benefits play a significant role in the division of property during a divorce, often adding layers of complexity to the process. Here is an overview of key benefits and their potential impact.
Military Pension
The pension is one of the most substantial assets for former military members, and it is often divisible under the USFSPA. Its division can depend on the length of the marriage and the duration overlapping with military service. Understanding the “10/10 rule” is crucial. This rule dictates direct payment by the DFAS to the nonmilitary spouse only if the marriage lasted at least 10 years, overlapping with 10 years of creditable service.
Survivor Benefit Plan (SBP)
The SBP provides ongoing income to a spouse in the event of the retiree’s death. Deciding whether the former spouse will be the beneficiary is an important aspect of divorce negotiations. A court should approach this decision with foresight to ensure financial security.
Thrift Savings Plan (TSP)
Similar to a civilian 401(k), the TSP is a retirement savings and investment plan available to service members. Determining its division will require a qualified domestic relations order (QDRO).
Tricare Health Coverage
Tricare, health coverage for service members and their families, can vary in eligibility for former spouses. Continued eligibility after the divorce depends on factors like the length of the marriage and overlapping service years, known as the “20/20/20 rule” or “20/20/15 rule.” In both cases, the marriage and the military service must have lasted at least 20 years. The final number determines whether the marriage and service needed to overlap for the full 20 or just 15 years.
Commissary and Exchange Privileges
Commissary and exchange privileges allow military members and their families to purchase goods at reduced prices from on-base grocery stores and retail outlets. These privileges may continue for former spouses meeting certain criteria, impacting negotiations related to ongoing support and living arrangements.
Distinguishing Between Property Types
In military divorces, it is crucial to distinguish between types of property for a fair division. Property generally falls into one of two categories: marital or separate. Marital property includes assets and debts acquired during the marriage. Separate property covers possessions and liabilities owned before marriage or gained individually through gifts or inheritance.
This distinction between property types is vital for negotiations and settlements, especially with unique military benefits that may overlap these categories. Understanding these distinctions aids in creating equitable solutions that respect both parties’ contributions and rights.
Dividing Military Housing and Relocation Considerations
In a divorce involving an active service member, dividing military housing and considering relocation events are essential yet challenging. Military housing, provided during service, usually cannot be split as a marital asset. Instead, equitable living arrangements involve assessing housing allowances and eligibility for other benefits, like temporary military lodging.
Relocation must consider both the service member’s future assignments and the nonmilitary spouse’s need for stability, especially with children involved. Legal guidance can help navigate these issues, ensuring fair outcomes for both parties.
Practical Steps for Service Members and Their Spouses
Navigating a military divorce can be a daunting process, but taking practical steps can help ease the burden. Here are some key actions to consider:
- Seek legal guidance: Engaging an attorney with experience in military divorce is crucial. They can provide expert advice on the intricacies of military benefits and ensure a fair division of assets.
- Document everything: Meticulously document all assets, liabilities, and benefits. This information will be valuable during negotiations and can help prevent disputes.
- Communicate openly: Open and honest communication between both parties can help reduce misunderstandings and foster a more cooperative approach to the divorce.
- Prioritize children: If children are involved, prioritize their well-being by working together to create a stable and supportive environment.
- Plan for the future: Consider the long-term implications of property division decisions, especially regarding retirement benefits and housing arrangements.
By taking these practical steps, service members and their spouses can better prepare for the complexities of a military divorce and work toward a resolution that benefits both parties.
As we have explored, dividing property in a divorce with an active service member is a multifaceted process. Throughout this journey, the support of a knowledgeable property division attorney can make a significant difference.
At LaCoste Family Law, we are dedicated to guiding you through the complexities of military divorce with empathy and professionalism. We invite you to reach out and consult with our experienced team to ensure a fair and balanced resolution that protects your future and the well-being of all involved.
