Tampa Military Divorce Attorney
Just like other couples in various professions and industries, members of the U.S. military often need to file petitions for divorce or need to respond to a petition filed by their spouse. While military divorces in Florida largely involve the same state laws that apply to any other divorce in Florida, it is important to know that there are some special rules for military divorces, and military divorces can come with additional complications. Accordingly, you should work with a lawyer who has experience handling military divorce cases and understands the complexities involved. Contact our experienced Tampa military divorce attorney today.
Issues to Consider in a Tampa Military Divorce
There are a variety of issues in a military divorce that can be more complicated than those same issues in a traditional divorce involving civilians. In general, the following are among the more complex issues in military divorces:
- Residency requirements for divorce;
- Ability to file or respond to divorce papers, and rules for default judgments;
- Division of marital property, specifically military pensions and benefits; and
- Child custody and time-sharing issues for military parents who are deployed.
How Are Military Divorces in Tampa Different?
Military divorces are distinct from civilian divorces in a few key ways. First, in a military divorce, the matter of jurisdiction can be complicated. In other words, can a Tampa court hear your divorce case? For members of the military who are stationed in Florida, or for members of the military who were recently living in Tampa prior to deployment, it is likely that a divorce case can be filed in Florida. However, it will be important to determine whether the residency requirements have been met.
Furthermore, the Servicemembers Civil Relief Act (SCRA) allows deployed military spouses to stay (i.e., pause) divorce cases. There is typically an initial 90-day stay, but it may be possible to delay a divorce cause further for a servicemember who is currently stationed or deployed overseas at the time of the divorce filing. The SCRA also protects servicemembers from default judgments in divorce and child custody cases if they cannot respond to a petition due to their deployment.
In addition, military pensions and benefits are divided between spouses in a particular manner that is distinct from the division of pensions and retirement benefits for civilians. The Uniformed Services Former Spouse Protection Act (USFSPA) allows state courts to divide military pensions between a servicemember and their spouse in a divorce. Further, depending upon the length of the marriage, direct payments may be made to the former spouse.
Finally, child custody and time-sharing can get extremely complicated, especially for a servicemember who is deployed. It is important for military families to recognize that deployed servicemembers do not give up parental rights or responsibilities by being deployed, and thus child custody and time-sharing arrangement will need to be created based on the circumstances of the case.
The Uniformed Services Former Spouse Protection Act
The Uniformed Services Former Spouse Protection Act (USFSPA) was created to protect former spouses, and it governs the division of a service member’s military retired pay. However, the USFSPA provides no independent rights to the ex-spouse for a share of the service member’s retired pay.Instead, the USFSPA provides the state courts with the authority to treat disposable military retired pay of the service member as “marital property,” which then is subject to division in a Florida divorce case. A service member’s disposable military retired pay is considered the gross retired pay less allowable deductions, including VA disability pay.
Depending on how long the parties were married, and how long the service member served in the military, the USFSPA also can provide a very useful method of “enforcement” of a state court order for division of a military pension. If the service member and former spouse were married to each other for at least 10 years; and during the time of marriage, the service member performed at least 10 years of military service creditable toward retirement eligibility, under the USFSPA, former spouses are entitled to receive their court-ordered portion of the service member’s retired pay directly from the Defense Finance and Accounting Service (DFAS). This is often referred to as the “10/10 Rule.” If the conditions of the 10/10 Rule are not met, any payments due the former spouse pursuant to a court ordered division of the service member’s military pension will come directly from the service member, which can be done by mailing a check, setting up an allotment or automatic payment, or some similar method.
The 10/10 Rule is often misunderstood, and many service members, former spouses, attorneys and even judges have misinterpreted this “Rule” to mean that if the marriage did not last for at least 10 years, that there can be no “marital interest,” thus no claim made by the former spouse on a service member’s pension. This is an erroneous interpretation since the 10/10 Rule only affects how the former spouse receives the share of military retired pay to which he or she is entitled pursuant to a divorce. Failure to meet the requirements of the 10/10 Rule does not prevent the state court from making a determination that there is a divisible marital interest in the service member’s military pension. Additionally, the state court can issue garnishment orders for the payment of child support and alimony directly from a service member’s military retired pay even if the 10/10 Rule conditions are not met.
The maximum amount that can be paid to a former spouse from a service member’s disposable retired pay is 50%, but this amount can increase up to 65% if additional pay is garnished from the service member’s retired pay for alimony or child support.
Additional benefits are available to former spouses who meet the requirements of a longer term marriage, and a longer overlap of service by the service member.
- 20/20/15 Rule—If the couple has been married for at least 20 years at the time of the divorce, and the service member has served 20 years towards retirement, but only 15 were during the marriage then the non-military spouse can receive full military medical benefits under the TRICARE system limited to one year following the divorce.
20/20/20 Rule – If the couple has been married for at least 20 years at the time of the divorce, and the service member has at least 20 years of creditable service, and there is an overlap of at least 20 years between the two, not only is the former spouse possibly entitled to up to 50 percent of the retired pension, but he or she is also entitled to full commissary and exchange privileges, and full medical benefits under the TRICARE system. These benefits remain for the life of the former spouse, or the service member, or until the former spouse remarries. If the former spouse’s subsequent marriage terminates, the former spouse’s entitlement to commissary and exchange benefits will be reinstated. Termination of the former spouse’s subsequent marriage does not reinstate his or her rights to medical benefits unless the marriage was annulled.
Other Concerns Specific To Military Families During a Divorce
- Parenting Plans and Timesharing Agreements that work around deployments;
- Postponing court proceedings if the service member is on active duty;
- Determining where to file for divorce since military members can file from where they are stationed, their state of legal residency, or where their spouse resides; and
- Perfecting service of process on an active duty service member.
Contact The Law Office of Laura A. Olson, P.A. Today
If you are planning to get divorced, and either you or your spouse is a military service member, it is important to work with a divorce attorney who is knowledgeable about military divorce law. The Law Office of Laura A. Olson, P.A. can help you successfully navigate through your military divorce. Call 813-222-0888 to schedule a free consultation today.