Service members have certain obligations and rights that are very different
from those of civilians when it comes to divorce. Having a military spouse
affects everything, from where the divorce is filed to how pension rights
and other important benefits are affected.
Below is a brief overview of the unique considerations involved in
Filing for Divorce
From the very start of a divorce case, military couples face a different
set of questions and concerns than civilians. Military couples must first
determine where they can file for divorce. The court that grants the divorce
must have jurisdiction over both the service member and spouse. In most
cases, the couple will have to file in the state where the military member
is a resident or is domiciled, or in a state that both spouses agree to.
Whereas in civilian cases, the divorce petition must be filed in the state
and county where either spouse has lived for at least six months.
Child Support, Custody & Visitation
If the spouses have children, they are of course obligated to continue
to support their children after the divorce. The Department of Defense
requires service members to comply with custody, visitation, and support
orders. Failure to pay child support could result in severe penalties,
including removal from the military.
Determining what a service member’s actual pay is can be a real challenge,
since there are many forms of compensation available (base salary, housing
allowances, “in kind” compensation, tax-free earnings, etc.).
To get the most accurate picture of a military member’s income when
determining child support amounts, military divorce attorneys look at
the Leave and Earnings Statement (LES) rather than a tax return, which
won’t list all of the service member’s income.
Another element unique to military families involves custody and visitation.
Uncertainty about future deployment and frequent moves make child custody
and visitation a unique challenge for military families. Parents should
have several plans in place for different types of situations, including
a visitation schedule when the military member is stationed near enough
for visits and a communication plan when they are deployed overseas. Contingency
plans are crucial to ensure that a family is covered, no matter what happens.
Retirement & Other Benefits
The military, although operating under different rules than the private
sector, is still considered an employer and provides members with a wide
range of benefits, including life insurance, medical coverage, pension
benefits, and more. Like civilian divorce, these benefits are subject
to division according to the laws of the state where the petition is filed.
When it comes to health insurance coverage, children of service members
will continue to be eligible for medical benefits through TRICARE, but
unfortunately, civilian spouses most likely will not qualify once a divorce
is finalized. Ex-spouses may be eligible to keep their coverage if they
meet the following criteria: they do not qualify for their own health
insurance through their employer, they have not remarried, and they meet
the requirements of the 20/20/20 rule (that is, they were married for
at least 20 years, their spouse had at least 20 years of military service,
and there was at least a 20-year overlap between those two time periods).
Contact McKinley Irvin for Your Military Divorce
Military divorce can be complex, which is why you should absolutely involve
an experienced attorney before attempting to negotiate a divorce or sign
a settlement. If you are considering a divorce in Oregon, we invite you
to contact McKinley Irvin’s Portland office to set up a consultation.
We will get you started with the Oregon divorce lawyer best suited to
handle your unique military divorce.
We can be reached at (503) 395-0244.