Divorces are not
easy. It leaves the couples to separate a life that they had worked together to
create. Divorce becomes more complicated when
it involves military families. Both partners in a military family experience sacrifice, whether it’s the person providing the service for our country or the
person that stays home to provide the support. Some of their sacrifices are the
constant moving of the family or feeling like single parent families while one
member is deployed t. The support and
willingness to move is often why it becomes difficult to divide the assets -- both
parties feel entitled. Although military
personnel are respected and often cherished people in our community, they subject
to the same difficulties and issues as others when it comes to divorce. But
military families are subject to different procedures throughout their divorce,
such as where to file, which state most provides the best outcome, and domicile
for children involved.
One of the first
questions that needs to be answered when a couple is getting a divorce is where
should I file for a divorce? This is especially important for a military family
that might be stationed overseas or in another stated with different rules and
regulations. The first thing that needs to be established to know where to file
for divorce is domicile and residence. Domicile is important for because one of
the parties must call the sate “home” for legal residence purposes for the
divorce to be valid[1] . A domicile is the place of someone’s true,
fixed, permanent home and principal establishment, a place to which a person,
whenever absent, has the intention to returning. Some helpful documents which
lawyers use to help establish domicile are: moving the whole family to the
state, declaring his residence in the state on documents such as wills, deeds,
mortgages, leases, contracts, insurance policies, declaring his residence in
the state in affidavits or litigation, paying income and personal property taxes
to the state and county, purchasing land, or home in the state, leasing a home
in the state, registering his vehicle in the state, obtaining a driver’s
license in the state, marrying in the state, providing that address on his
federal income tax return [2].
Although this list is not exhaustive, it provides a good starting point for
those who are unsure about how to acquire domicile, and to discuss with your
attorney when deciding where to file for divorce.
Being in a
military union allows the non-service spouse to acquired special privileges,
legal rights and entitlements, however, these rights are lost once there is a
separation. Once the divorce process begins the separation of assets also
starts, and one of the most important assets which will be divided in the
pension and retirement plans. Another significant issue that arises is whether
military personnel retirement accounts are considered assets to divide between the
military spouse and the non-military spouse.
Retirement pay was
not always a divisible asset in military divorce. In 1982 Congress passed the
Uniformed Services Former Spouses’ Protection Act (USFSPA)[3].
USFSPA allows the states to divide military retired pay in divorce and
equitable distribution proceedings. The act leaves it to the state to decide
whether military retired pay is marital or community property that is divisible
upon divorce or whether it is solely the property of the service member[4].
This is another important factor in determining jurisdiction when trying to
decide where to file for divorce. Because the USFSPA leaves it up to the state
most service member will try to use domicile as a defense preventing the non-service
spouse to receive pension benefits. One way to avoid this issue is if the
service member waives and agrees to divide the pension, however, the issue then
becomes on how to divide the pension.
A divorce can
become even more difficult when there are children involved, especially when
one of the parents is a service member and can face deployment at any moment.
Although it is difficult determining who will get custody of the children, especially
when one parent is on constant move due to his service duty, there is no definite
law that states the non-service member will get custody. Most courts will
always focus on the best interests of the child as the parents conduct. Every
court and every state handle it differently, however it will be very beneficial
for a parent seeking custody to be demonstrate consistent care for the children
and a willingness to make adjustments and sacrifices that custody involves. Any
and all information can prove helpful during this stage – it is more then okay to
state that you will be receiving help from others (whether it’s a new spouse or
other family members) to help achieve the care and consistency for the
children. Even if one parent does not get custody they could be entitled to
visitation rights and it is then important to draft a visitation schedule which
includes both a local and long distance schedule in case of the service member
parents deployment or relocation[5].
Although divorce
is a separation it should never be tackled alone, especially when it’s a
military divorce. This separation brings about lots of changes like losing
special privileges for the non-service member spouse such as living on base or
health care. It is always important to have a support system in place like
friends and families. The legal process of the divorce is also very complicated
and it’s important to obtain legal assistant from someone that is experienced
with military divorces, in order to make this process as less painful as
possible.
(Written by our intern Alba Contreras.)
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