While the divorce process is not simple in itself, it may seem even more complicated for people who serve in the US Armed Forces and their spouses. Due to the specifics of military duty, certain issues may arise in the process in addition to the standard set of challenges.
Indeed, service members are subject to specific and unique laws that also touch upon the marriage dissolution procedure in many aspects. These rules and regulations would not apply to civilians, but if you are in the military or the one who wants to divorce such a person, you will need to take them into consideration. For this reason, it may be advisable to consult a qualified lawyer who can explain how to get a military divorce, especially in a state where the procedure differs from a standard one significantly.
We did our best to gather the most important information about the divorce in the military to shed some light on this tricky issue. This article covers some crucial aspects that may arise during the process, explaining some of the laws and regulations relevant to military divorce in Florida.
Protection from Military Divorce Proceedings in Florida
Military members have certain provisions and protections under the Servicemembers Civil Relief Act (SCRA), which in part touches upon military divorce in Florida in terms of allowing the court to “stay proceedings” against servicemembers.
SCRA does not explain how to file for divorce in the military but protects servicemembers’ rights against any negative effect of financial or legal actions of another party while on active duty. One of the army divorce regulations and protections granted is against default judgments in civil cases. In the military divorce context, it means that the court cannot grant divorce by default and issue any orders in favor of the plaintiff if a service member did not appear in the courtroom while deployed. Military members have the right to delay the proceedings for a minimum of 90 days under certain conditions.
Residency Requirements
For the court to have jurisdiction over the case, the couple should meet certain residency requirements for divorce in Florida. Generally, they are just the same as for civilian divorces: at least one of the spouses must be a state resident for no less than 6 months before filing the petition (Fla. Stat. § 61.021).
Since duty-bound service members tend to move from place to place, you may ask, “Can military members file for divorce in any state?” Generally, according to the current legislature, such families are allowed to file in the state where:
- the service member is stationed at the moment;
- the service member claims legal residency;
- the non-military spouse resides.
There may be more lenient requirements in some states that allow submitting the petition in other jurisdictions. In Florida, it may be a question of connections and contacts with a particular territory or state, which should be better discussed with the lawyer for a smooth and stress-free military divorce process.
Grounds for a Military Divorce in Florida
To divorce a military spouse, you need to state one of the legal grounds recognized in the state: irretrievable marriage breakdown or one of the parties’ mental incapacity (which should be declared by the judge at least 3 years before filing the petition) (Fla. Stat. § 61.052). Since Florida is a no-fault state, neither party should prove the other spouse’s fault in the broken relationship.
What Issues Must Be Agreed on?
Whether you are a civilian or a military family, you need to agree on a certain set of issues when you file for divorce, including disputes related to child custody, spousal support, property division, and debt allocation.
The length and success of reaching agreements on these matters are also decisive in answering the question, “How long does a military divorce take?” And if you cannot agree on some or all of the disputed matters, the involvement of attorneys is inevitable.
Let’s look at some of the most crucial points that must be considered in resolving these issues in the legal, military, and social contexts.
- Property Division
In Florida, property is divided as per the equitable distribution principle as stipulated in the Fla. Stat. § 61.075, in either civil or military divorce. Consequently, all the non-marital assets and liabilities are left with the owner party, while marital ones, which were acquired by the couple during the marriage, are split equally unless this equal division is unjustified. To determine this fact and to ensure fair and equitable distribution of marital assets and liabilities, the court considers the following factors:
- Marriage duration;
- Each spouse’s financial situation;
- Possible interruptions of personal careers or educational opportunities;
- Each spouse’s contribution to their marriage and to the other party’s personal career or educational opportunity;
- Each spouse’s contribution to the acquired income or liabilities;
- The desirability of retaining any asset or the marital home for particular reasons;
- The intentional waste or destruction of marital assets;
- Any other factors the court deems relevant.
Some other pertinent factors would include issues related to the military retirement pay, the Survivor Benefit Plan (SBP), and any other matters specific to the service member.
- Child Custody and Support
It is common for the US courts to make decisions concerning child custody and support based on the child’s best interests. This rule is also applicable in Florida. Normally, factors considered in such matters include:
- Number and age of children;
- Their needs, well-being, and safety;
- Standard of living and all the incurred expenses;
- Both parents’ financial status and paying capacity;
- Both parents’ ability to provide for the children’s basic needs;
- Children’s relations with both parents;
- Any history of abuse and neglect;
- Any other relevant factors.
Fla. Stat. § 61.20 is a special statute in the Florida Code that offers recommendations concerning a parenting plan for divorcing parents, while Fla. Stat. § 61.45 outlines stipulations regarding the violation of the court-ordered parenting plan.
In their turn, child support guidelines with detailed explanations of their applicability, net income calculations, each parent’s share, etc., are provided in Fla. Stat. §§ 61.29 and 61.30.
Divorce in the military with a child emerges with an even greater number of issues impacting child-related court decisions. The military personnel lifestyle presupposes frequent deployments, leaves, transfers, training, and relocations. Besides, the other spouse is often unemployed or underemployed in such families, which puts the larger share of child support on the military spouse and complicates custody matters.
The court surely takes into account all the issues of military service and makes decisions in the children’s best interests while ensuring the protection of the military spouse’s parental rights. Part IV of the Fla. Stat. § 61 presents the Uniform Deployed Parents Custody and Visitation Act that outlines all the relevant regulations. Among other things, it protects custody regulations from any changes during deployment unless they impact the child’s best interests or well-being.
- Spousal Support
Spousal support or alimony in Florida can be granted to either spouse after consideration of both parties’ needs and ability to pay. If spouses cannot agree on this issue, the court steps in to determine if either of them can qualify for alimony payments, if the other party is able to pay, which type of alimony is appropriate, what amounts should be awarded, and for how long should they be paid.
According to Florida laws, alimony can be temporary, durational, rehabilitative, and bridge-the-gap, each granted under certain conditions and for certain purposes. Its duration depends on the circumstances and the length of the marriage in most cases.
Other factors that influence the court’s decision on the award of spousal support include each party’s:
- Age, physical and mental health, and emotional condition;
- Income and resources;
- Earning potential, education, skills, and employability;
- Living standards as a married couple;
- Contribution to the marriage;
- Expected needs after the divorce;
- Responsibilities towards children;
- Any other factors the court deems relevant.
All the detailed provisions are outlined in the Fla. Stat. § 61.08, and you can learn more about alimony law in Florida from our article here.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) also allows a spouse divorcing a service member to apply for military divorce alimony or child support in addition to certain benefits they are entitled to as provided by the same law. Considering the conditions and lifestyle in military families, the non-military spouse is more likely to be in need and eligible for any spousal support payments.
To apply for any direct payments under the USFSPA, the non-military spouse should complete and submit an Application for Former Spouse Payments from Retired Pay, a copy of a relevant certified court order outlining their awards, and an income withholding order to the Garnishment Law Directorate at the Defense Finance & Accounting Service (DFAS).
Considering all the specific benefits a non-military former spouse gets, they often ask, “How much alimony does a military wife get?” Many informational resources and even lawyers would promise a larger share of the service member’s pay and allowances. In reality, a former spouse’s maximum under the USFSPA cannot exceed 50% of the military spouse’s disposable income.
Rights of a Military Spouse in a Divorce
When getting a divorce in the military, spouses of service members indeed have certain benefits outlined in the USFSPA, 10 U.S.C. 1408. Among other things, they may be entitled to parts of their ex’s retired pay, free medical care, military exchanges and commissaries, and/or acceptability under the Survivor Benefit Plan. However, certain conditions must be met for the former military spouse to be eligible for such benefits. Besides, the court considers every case and resolves every dispute individually.
The USFSPA grants state courts the right to view service members’ retired pay as marital property while dividing it and allows direct payments to former spouses through the DFAS under certain circumstances. Therefore, spouses divorcing a military member can get the following:
- A portion of a disposable military retired pay;
- Direct payments of retired pay portions from the government;
- Access to health care at military facilities;
- Access to military exchanges and commissaries;
- Benefits in spousal or child abuse cases.
It should be noted that disposable retired pay is subject to division during divorce. It means service member’s monthly pay entitlement minus:
- Amounts for previous overpayments or recoupments;
- Court-martial fines;
- Amounts waved to get compensation under Title 5 or Title 38;
- SBP premiums;
- Amounts of retired pay based on disability;
- Amounts owed to the United States;
- Federal and state income taxes.
However, military members’ former spouses are not entitled to these benefits automatically since the USFSPA does not insist or even require the state courts to divide military retired pay and does not provide any formula for its division. Similarly, it does not set any predefined shares, or the ceiling percentage of disposable military retired pay that should or may be awarded to the former spouse.
Such issues are decided by the court after the consideration of each specific case under the laws of a certain state. On the other hand, the spouses may agree on the retired pay division on their own and certify it in their settlement agreement.
Requirements for Marriage Duration
Of course, a natural question is: “How long do you have to be married to get military benefits?”
The marriage duration indeed has a role to play in the decision concerning military member’s retired pay. From this perspective, the USFSPA has several plans to offer:
- The 10/10 Rule
The service member’s spouse may receive their portion of assets allocated by the court directly from DFAS if they meet the following requirements:
- The parties were married for no less than 10 years;
- The service member performed not less than 10 years of creditable military service;
- These two terms overlap (10 USC 1408(c)(2)).
- The 20/20/20 Rule
A spouse of a service member may receive full medical, base exchange, and commissary benefits after divorce if the following criteria are met:
- The parties were married for no less than 20 years;
- The service member performed not less than 20 years of creditable military service;
- These two terms overlap by at least 20 years.
Note that these benefits will be terminated when the non-military spouse remarries but can be revived as soon as this marriage ends.
- The 20/20/15 Rule
A service member’s former wife can be entitled to full military medical benefits for one year. After this period is over, they may purchase a conversion health policy negotiated with the Department of Defense. To be eligible for such benefits, the couple should meet the following conditions:
- The parties were married for no less than 20 years;
- The service member performed not less than 20 years of creditable military service;
- These two terms overlap by at least 15 years.
In case of the former spouse’s remarriage, these benefits will be terminated and revived again after the divorce.
Survivor Benefit Plan
Military members are normally enrolled in the SBP, which ensures a continuous lifetime annuity received by their dependents after the retired member’s death. Under the 10 U.S.C. 1448, the former spouse can also be entitled to these SBP payments if chosen as a beneficiary. The coverage entitlement may be voluntary or court-ordered, which is confirmed by election as stipulated in the respective statute.
The coverage amounts for the ex-spouse will still be the same as they would be for the spouse, even if the divorce occurs after retirement. If the marriage was dissolved while the member was still on active duty, the court should order the specific coverage level. However, the former spouse loses their eligibility for these payments if they remarry before 55 years, which can be restored in case this marriage ends.
It should also be noted that the coverage for a former spouse may be changed as soon as the retired service member remarries if the former spouse election is:
- Court-ordered;
- A result of a written agreement not ratified or approved by a court order;
- Voluntary and not verified in a written agreement.
Jurisdiction, property division, debt allocation, child custody, and spousal support in military divorce are all issues that entail additional considerations due to the specifics of military service. They may create additional challenges for an already confusing and complicated marriage dissolution process. Therefore, a consultation with an experienced lawyer qualified in military cases may be a good decision.