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Military Divorce .

Military Divorce Overseas

Being in the military and having to divorce overseas can be difficult. Although service members and their spouses can file for divorce through overseas jurisdictions, the courts of the United States might not recognize the ruling. In order for the U.S. courts to recognize the overseas divorce, either you or your spouse must live in the jurisdiction ( foreign country, etc.), that grants the divorce. With the proper service and notice, then that court, in which one of you resides in whether foreign or domestic, will have the power to grant the military divorce overseas and the U.S. courts will recognize it.

You are able to avoid this potential issue by filing for divorce in a state, instead of doing it through a foreign country. Fortunately, military divorce laws allow service members and their spouses to file for divorce in either of the following:

• The state where the service member is currently stationed
• The state where the service member claims legal residency
• The state where the non-military spouse resides

When determining in which state to file, it is important to remember that the Uniformed Services Former Spouse Protection Act grants the power to divide the military pension in a divorce to the state where the service member claims legal residency. If you are living overseas when the divorce is finalized then you, your possessions, and your children may be able to return to the United States or country of origin at the government’s expense. Service members that are permanently stationed outside the United States may request early return of dependents. This will authorize the return of command-sponsored family members and their household goods before the service member’s service ends.

If you have specific questions or need help with your military divorce overseas, contact Thorsteinson Law Group, your trusted and experienced divorce and family law attorney.

Divorce on Military Benefits

If you are married to someone in the military and are about to enter the divorce process, you should be aware of the effects the divorce will have on your military benefits.

You will not be eligible to continue using the commissaries and exchanges once your divorce is finalized. This differs when you meet the requirements of the 20/20/20 rule. To qualify for the 20/20/20 rule a former spouse must show that the service member served at least 20 years, that the marriage lasted at least 20 years and that the period of the marriage overlapped the period of service by at least 20 years.

The Uniformed Services Former Spouse Protection Act also permits former spouses to continue receiving commissary, exchange, and health care benefits after a divorce. If you do not qualify for the 20/20/20, you may retain your identification card and can continue to receive your commissary, exchange and health care benefits until your divorce is final.

There are other issues for you to consider regarding divorce and military benefits:

• Military Housing: The service member does not have the authority to evict you. Only the installation commander has that authority. However, it is important to remember that by law, military family housing can only be occupied by service members who reside with their family members. Therefore, if you are separating from your spouse and you are not in the military, you and your family must vacate military family housing.

• Health Care: Unless you meet special requirements, like the 20/20/20, as a former spouse, you will not be entitled to any military health benefits after your divorce is final. However, you can receive a premium-based temporary health care coverage program, for 36 months of coverage.

• Support: In order to receive alimony or child support you must specifically request that a civilian court do so. State courts with jurisdiction over dependent children or a state agency with the proper authority can order child support payments. Child support can additionally be secured through what is known as a statutory allotment.

The effects of divorce on your military benefits vary with each case, in order to get the best assistance with planning out your divorce and ensuring you understand the process, it is best to keep in contact with your divorce and family law attorney.

If you have specific questions and/or need help with your military divorce contact Thorsteinson Law Group, your trusted and experienced divorce and family law attorney.

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Child Custody in a Military Divorce

Child Custody in a military divorce is governed by a combination of federal and state law. Military pension and certain emergency child support orders are dictated by federal law. A military spouse can argue for child custody, but the decision can be made complicated by military obligations. However, the mere fact of military service is not enough to prevent being awarded custody. The civilian spouse cannot argue that he or she should get custody simply because his or her partner is in the military. Regardless, both spouses must come to terms with the fact that in the military the needs of the service come first.

For the spouse who is a service member, they can argue the advantages to life as a military dependent and the perks that come along with it. For example, most posts and bases have excellent school systems and many opportunities for child care and recreation. Most military bases have day-care facilities. What is the best part is that all of the above are provided to a service member at no cost. The Post Exchange at the base sells consumer goods that can be purchased at greatly reduced prices. The service person with children can make a strong argument for their custody rights, given the mentioned perks.

In awarding custody in military divorce courts consider the “best interest of the child.” The courts consider many factors including:

• The child’s preference and if he or she is mature enough to make a decision
• The ability and willingness of each parent to provide for the child’s physical, intellectual and emotional well-being
• The willingness of the custodial parent to provide continuing contact between the child and the noncustodial parent
• Abusive or criminal conduct by the other parent

These are the same considerations in custody decisions as in civilian divorces, so the military service, including the demands of training schedules, is only one factor in determining custody in a military divorce.

If you have specific questions about child custody and/or need help with your military divorce contact Thorsteinson Law Group, your trusted and experienced divorce and family law attorney.

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Military Divorce Eligibility of Former Spouse for Pension

A former spouse is eligible to receive direct payments from a retiree’s retired pay if the court order pleases the requirements and conditions specified for such payment. In the case of a division of property, the court order specifically must provide that payment is to be made from disposable retired pay. Disposable retired pay is a service member’s monthly retired pay minus qualified deductions.

To establish eligibility for a court-ordered division of retired pay as property, the former spouse must have been married to the member for 10 years or more during which time the member performed 10 years creditable service. Court-ordered payments for child support and/or alimony do not require a specified length of marriage.
In 1981, the U.S. Supreme Court ruled that military retired pay could not be treated as community property in divorce cases. In response, Congress enacted the Uniformed Services Former Spouses Protection Act (USFSPA) which decreed that state courts could treat military retired pay as property in divorce cases if they so choose. For the service member, it is important to know the options when considering division of retired pay in a military divorce.

There are four potential options when bearing in mind a division of retired pay:
• Stated dollar amount: When expressing the award using a dollar figure, the Former Spouse is not afforded a COLA adjustment and the member would receive that portion added to their portion of the retired pay.
• A percentage amount: This method is not usually used when you don’t know the exact date of retirement, due to un-matured pension
• Coverture fraction formula: The most common way to divide a Military pension that has not yet matured would be through the use of a marriage coverture fraction formula. This formula simply divides the number of years of creditable service during marriage (numerator), into the total number of years of creditable service at the time the Member would retire (denominator). The payment of an amount of retired pay must be expressed in dollars or as a percentage or fraction of disposable retired pay
• Delayed order option: A deferred percentage is simply placing an order with the Military today, but leaving the calculation and conclusion, open. This is so when the member applies for retired pay, all the parties would be notified and a “clarifying court order” would then be required.

Each has its own advantage and/or disadvantage to you and/or your former spouse. It is important to know how each method effects your financial situation and even more important to get the best legal advice to clarify any confusion in your options.

If you have specific questions or need help with your military divorce, contact Thorsteinson Law Group, your trusted and experienced divorce and family law attorney.

Military Retirement and Pension in a Divorce

Military assets are divisible in the case of divorce just like any other asset in a California divorce, provided the court has jurisdiction over the proceedings. It’s important for couples going through a military divorce to have a good understanding of how California divorce courts handle the division.

In 1982, the Uniformed Services Former Spouses’ Protection Act (USFSPA) was passed by Congress which gave state courts the ability to choose how or whether to divide military assets in a divorce, legal separation, or annulment.

In order to divide military assets the court has to have the authority to do so from the military spouse’s consent or the fact that the spouse is a legal resident in a California. A military member being stationed in California does not mean they are a resident and therefore does not automatically grant consent. However, the court is allowed to reasonably assume consent from both spouses in the divorce proceedings.

California divorce courts can divide a service member’s military retirement as long as the court has jurisdiction. This authority is not limited by the length of a marriage.

Contact Thorsteinson Law Group  in Long Beach or Huntington Beach to help you with your divorce. We provide complimentary consultations, and are dedicated to helping you through the divorce process.  Brett Thorsteinson is a divorce lawyer who will advocate for your rights.