Pain from losing someone you love is not easy to deal with, especially for those in the service. Maintaining a marriage is difficult enough while on active duty, making a divorce all that more challenging. Fortunately, there are many options available to active service members and their spouses. If you need help with a family law situation that involves someone in the military, you need counsel from an attorney who understands the complexities of military family law.
Rights as an Active Service Member
The Servicemembers Civil Relief Act protects active-duty service members. Usually, when one spouse files for divorce, the non-filing spouse must respond within a set time. However, under the Servicemembers Civil Relief Act:
- Postponement of civil court or administrative proceeding is possible if the service member cannot attend because of active duty.
- Protection against default judgment or failure to respond to a lawsuit or trial is granted.
The military has legal assistance that will help you understand the implications of your divorce, but due to jurisdictional issues, they cannot represent you. Military lawyers can only help guide you so far before you need to hire a civilian lawyer to settle the case.
Rights as a Military Spouse
Despite the military viewing divorce as a private civil matter, spouses of active service members also have access to the military’s legal services free of charge. However, active-duty members cannot represent you and, at most, can give you advice about how to approach your divorce. Two separate lawyers are required, one to represent each party, in a divorce to make sure that each party has independent and confidential advice.
Communication between you, your lawyer, and legal assistance through the military are all confidential. Although the military legal assistance attorneys cannot represent you or your family or draft documents, they can give you invaluable advice regarding divorce, child custody, income tax, and wills. Any civil case, such as divorce or legal separation, will require a civilian lawyer to represent you in court. Child custody, child support, and division of assets, including retirement pay, will need to be handled by a civilian lawyer.
Specific benefits to former spouses of military members are available under the federal Uniformed Services Former Spouse Protection Act. A service member’s former spouse may receive benefits from the Morale, Welfare, and Recreation programs, including medical, commissary, exchange, and theater privileges. Furthermore, under the 20/20/20 rule, some spouses may be able to seek further benefits. To qualify for the 20/20/20 rule, the spouse must have been:
- Married to a military member for at least 20 years at the time of separation.
- Married for 20 years during the service members’ retirement-credible service.
- The military member has been in service for 20 years and is eligible for retirement pay.
Those who qualify for the 20/20/20 rule can retain their DoD or military license, giving them access to the commissary, civilian discounts at restaurants, and more. They also qualify for Tricare service; however, the service ends one year after the divorce is final. Children do not need the 20/20/20 rule even after divorce, as their Tricare benefits remain with them until they turn 22 or marry, whichever comes first.
If a former spouse remarries, all the aforementioned benefits will end. Tricare benefits are permanently dissolved, and commissary, military exchange, and theater privileges will be suspended. However, if the marriage ends for any reason, the benefits are reinstated.
Filing a Divorce Overseas
Foreign divorces are complicated, and the U.S. may not recognize them. If you are considering divorce, it’s usually best to file in the United States. Family members of the active service member can be brought home at the government’s expense even before their tour of duty ends. Filing can be done in the state of residency, either of the military member or the spouse.
Custody When One Is in the Military
Usually, a family care plan will be the temporary default used in the event of a separation during active duty. This goes both for unexpected deployment and divorce. A family care plan will list some of the visitation and custody arrangements if something happens. For instance, if they are stationed close by, they can plan for frequent visitation consistent with the parent’s free time. You should also prepare a plan in the event of overseas or long-distance deployment. Communication between both parties is necessary as military service may not know precisely when their free time will be, and the child’s guardian may need to rearrange plans for them.
If the parents have joint custody and one is in the military, the child will generally stay with the civilian parent when the military member is away. However, suppose the military member has sole custody. In that case, it is usually advised that they transfer custody either to the other parent or to another family member such as an aunt, uncle, or grandparent during deployment.
The military requires military parents who have children to establish a family care plan regardless of whether they planned to make one or not. A family care plan is required if:
- A service member is a single parent with custody or joint custody of a child under age 19.
- Both parents are service members and have custody of children under 19, in which case both must sign the same family care plan.
- A service member is the sole caretaker for a child under 19 or a caretaker for another adult family member or spouse otherwise disabled, preventing them from providing their own care.
If any of these are true, the service member is required to advise the military. They then have 60 days to give their commanding officer a formal family care plan if they are on active duty.
Stange Military Divorce Lawyers
Finding a lawyer to handle your divorce is a daunting task. Lawyers can ensure that you both are protected and help make sure that neither is on the receiving end of a bad deal. Military divorces can be incredibly complex as they have to consider all the benefits, laws, and privileges that come with being an active service member/spouse. Here at Stange Law Firm, we handle divorces with your best interest in mind; contact us for a consultation about your case today.