Attorney Military Divorce guide: learn USFSPA, TRICARE, retirement pay and child custody rules before you hire the best specialist
A few years ago, my brother called me from a parking lot outside his base. He’d just been served divorce papers by a process server and he didn’t sound so good. His voice was flat and shaky. He said, ‘ I have no idea what’s going to happen to me in retirement. ‘ ‘Or to my kids. Or my health insurance. Do I just dial up the first lawyer I find on Google? ‘
I’m not an attorney but I have been around several military families for several years. I have seen what happens when someone wings it, and it is never good. I told him the same thing I’d tell you to get a professional before you take one step. Here’s your starting point for locating the best family defense lawyer in the military community, everything you should know about that process, and the cost. Finding the right attorney and military divorce specialist is the first real step. For the latest Legal updates related to military divorce and family law, it’s also important to stay informed as you navigate the process.
Absolutely. More often than not, you need a specialist. You need a lawyer who specializes in divorce cases for military members who understands federal law, rules for retirement pay and TRICARE eligibility, and custody issues arising from deployment, which conventional family lawyers generally don’t encounter.
Is a Military Divorce Lawyer Really Necessary?
More often than not, yes. Imagine: you would not approach a baker when you need to change your car’s oil. While both are reputable businesses, it’s just not their field. A general family practice will probably be quite competent when working on civilian divorces. Military divorces yet have their own set of rules, their own acronyms, and their own pitfalls. An attorney military divorce specialist is trained for exactly these pitfalls.
Miss one detail in your decree, and you might pay dearly at retirement. After the judge signs that decree, a change is almost impossible. A specialist guards against that mistake.
Why Military Divorce Differs from a Regular Divorce.
Almost everything about the paper work feels familiar, but the rules underneath make all the difference, the top three being:
1. Where You File Matters, More Than You’d Think.
Most typically, divorce is filed for in the state where either individual is a resident, or in the state where the service member is assigned. Residency requirements depend on the state, but most have time periods of several months. Military families move constantly and this can get complicated quickly.
Now the trap that most people don’t see: under federal law, there is a second requirement needed in order for a court to reach military retired pay. A court can only divide military retired pay if either (a) the court has subject matter jurisdiction over the service member in one of three waysa nondistrict state where the service member resides for some purpose other than military orders, a domiciled court, or where the service member consents to the proceedings; or (b) if the proceeding was filed in a district where the service member was stationed, then the court may be barred from accessing the retired pay even if jurisdiction over anything else is established. An attorney military divorce specialist will check both requirements before anything is filed.
2. Serving Papers Gets Complicated.
The court has to officially, formally serve the papers for divorce. Which isn’t easy if he is away on deployment, at sea or overseas.
3. Federal Law Steps In.
Two laws come up again and again:
- Servicemembers Civil Relief Act (SCRA): This law shields members of the military from default judgments when absence because of service precludes timely response. It also brings members with an initial stay of all proceedings or other action, for up to 90 days, where military duties would interfere. The member must apply in writing, state how military duties interfere with appearing, provide a date available and have a letter from the service member’s commander.
- Uniformed Services Former Spouses’ Protection Act (USFSPA): a law that specifies the rules courts use when dividing up military retirement pay.
The Military Divorce Process, Step by Step
The military divorce process generally follows the same broad arc as any divorce, with a few military twists. Here is the map:
- Decide where to file. Figure out what state will have jurisdiction over the divorce and separately over the retirement pay.
- File and serve petition. Serve the papers. (This service will be more difficult and will take more time if the service member is deployed. )
- Watch for SCRA protections. Correct application by the service member should result in a first 90-day stay. An effective attorney who knows the law can accomplish this without derailing your case.
- Negotiate the big issues. By the end of this phase, you should have finalized property settlement retirement spousal support, child custody and the division of benefits. This is the core of the negotiation.
- Instead, settle the final decree. Clearly specify even the minutest of details, like pension and disability payments.
- Follow through. Arrange for the signing, setting up the retirement payments, medical plan, and support order.
What surprised me most about my brother’s participation in the planning process was how much depends on the fourth step. That’s where the money and the future reside. A skilled attorney military divorce professional treats this stage as the heart of the case.
Military Retirement: Where Most Money Is Won or Lost.
Perhaps the greatest value a specialist brings to the table is in preparing for retirement. If there is one area for which a shipboard attorney attracted to the long term value of the client servicing fee can truly realize the value of each dollar earned, it is in a retirement workspace. This is what you need to understand.
Retirement Pay Can Be Divided by the Courts 8.
The USFSPA allows state courts to portion out the non-disposable retired pay as marital property. The 10-year marriage “rule” is a myth. Courts don’t necessarily divide the pay. The judge rules the amount based on state law.
The 10/10 rule still determines only if the Defense Finance and Accounting Service (DFAS) continues to pay the former spouse directly; it is applicable if the marriage exceeds ten years and overlaps with ten years of service. If this does not apply then the spouse is equally entitled to his or her slice but goes to the service member personally, which makes it more difficult to enforce if the payments were to cease.
Even if you choose to have your property divided by direct payment, the DFAS will limit the property-division payments to a maximum of fifty percent of your disposable retired pay (or 65 percent if you are also required to pay child support/alimony).
The Frozen Benefit Rule;
Since a 2017 amendment to the law, when the divorce was finalized on or after Dec. 4 2016 while the member was still on active duty, the former spouse’s share is based on the member’s rank and years of service on the divorce date, not at retirement. Later promotions don’t increase the spouse’s share, except cost-of-living adjustments. A service member with more years to go till retirement could boost the math differently.
Disability Pay Functions Differently
Military disposable retired pay is generally divisible. These benefits generally are not:
- VA disability compensation. When filing an application for VA disability, it was mentioned in my diagnosis that I was disabled by the VA, due to my pancreatic condition. A receipt of an award of disability benefits will be included in the V. (Apart from the diagnosis should this be filed, it was also included as was the receipt for an award of disability pension from the Department of Veterans Affairs). The VA issued me a VA service number.
- Disability (the “disability” part) of military disability pension.
- Combat-Related Special Compensation (CRSC)
CRDP is the exception. Since it is replacing retired pay that the member voluntarily waived, DFAS has considered it to be retired pay, and has characterized the payments as divisible.
Here’s where it gets a little tricky. If a service member elects VA disability compensation, that election invariably results in a dollar-fore-dollar waiver of retired pay. Here, the dollar-fore-dollar waiver reduces the amount of funds available to provide the former spouse’s share. If the former spouse’s share is low enough, the waiver could even eliminate it.
Neither CRSC or CRDP offers the equivalent dollar-for-dollar offset, but a service member must be eligible based on additional criteria. The CRDP has a requirement of a minimum of 20 years of service, and a VA rating of 50 percent or greater. The CRSC calls for a combat-related disability. As an example, a service member who is rated 30 percent disabled, but his disability is not combat-related would not be eligible.
Disability pay is not taxed and so there’s a big motivation to switch there. Which is exactly why it’s discussed so frequently.
The Supreme Court States: Judgments for No Reimbursement to Be Ordered.
Here’s a shocker to many spouses. The Supreme Court in Howell v. Howell (2017) decided that the state court cannot order a veteran to reimburse or indemnify the spouse’s lost pay if the veteran in the future releases retired pay to qualify for monthly disability benefits. Yet, simply labeling an order “reimbursement” or “indemnification” does not change the outcome. Because of this, the language in your decree is critical, and you can’t count on a judge someday to cure it.
“Gross” Instead of “Disposable” Pay Makes a Big Difference.
Simply put, the difference between awarding a share of gross retired pay and awarding a share of disposable retired pay can amount to a huge difference in the payout over a lifetime. One insignificant word in a decree can carry one very hefty price tag. This is exactly where an attorney military divorce specialist earns their fee.
What a Wise Decree May Do:
- For soldiers: It safeguards your bennies and itemizes precisely what you owe, so you don’t end up back in court pushing for your pension.
- Spouses:- Accurately drafting with the right words and where permitted by law alternative protections (such as other negotiated support) to protect against a subsequent reduction of your share.
That isn’t glamorous work, but a defense attorney who knows the military could handle it every day.
Would You Continue TRICARE After Divorce?
This is the first question we often get from spouses, and rightly so.
The marriage says a former spouse keeps 20/20/20 full TRICARE coverage and full access at the base if the former marriage is 20/20/20 (severed), the spouse has been 20/20/20 to the member for a continuous 20 months, and the member-and former spouse haven’t remarried and don’t plan to.
- At least 20 years of marriage was evidenced in the marital unit.
- The service member had served for 20 or more years.
- Those two years fell in the two periods that coincided at minimum at 20 years.
Close but no cigar? As the 20/20/15 rule, when the overlap is between 15 and 19 years, the previous spouse will receive one year of transitional TRICARE coverage.
Not enough, though? No worries, the law allows you to purchase interim coverage as a former spouse via the Continued Health Care Benefit Program (CHCBP). The coverage isn’t inexpensive, but it’s a way of filling that empty space for up to 36 months while you look for other insurance. Just don’t take too long to sign up within 60 days of losing your TRICARE coverage.
It’s your children, that’s another issue. Divorce does not terminate their entitlement to TRICARE.
Custody and Child Support When Duty Calls
This is in which the human facet hits difficultest. A civilian father or mother is involved in approximately weekend plans. A military dad or mum are worried about deployments, swift orders and lacking a birthday celebration from miles and miles away.
A strong custody plan for a military family answers these questions:
- What is the custody during the deployment?
- And what if the service member receives orders to a different base?
- Who has the authority?
- Where does the family care plan rank?
A good agreement-to keep in touch by phone or video while in deployment and have quality time while on leave.
It also shields a custodial service member from being hit with an unexpected, unwelcome surprise. Think about how upsetting it would be to return from a deployment to find a custody petition because your neighbor watched the kids while you were gone. Some states prohibit modifications to custody because of deployment, while others prohibit no such thing.
Child support had its own wrinkles.
The family support guidelines issued from a commanding officer may be different then what was ordered in a court mandated child support. May receive different treatment in different states. If you are receiving either BAH or BAS housing allowances while you are on active duty, or if you are receiving subsistence allowance, can be counted as income. May be counted as income in some states but not others. It all depends on the state in which the court was held. So, a tax return cannot be the only determination of support owed.
How to Choose the Right Attorney Military Divorce Specialist.
Here is the list I gave to my brother. You can use it, ‘steal’ it as much as you want.
- Actual military divorce experience. Need to be a regular portion of their practice, not “we have done a few. “
- USFSPA fluency. Can you describe the 10/10 rule, frozen benefit rule and difference between gross and disposable? And also – have you seen anyone use these keys? If they falter, continue searching.
- Familiar with the laws in your state. They should be aware of the laws in your state about variations in custody and division of property, and be knowledgeable about the rule of federal jurisdiction, which determines where to file.
- Remote-friendly service. If you’re deployed or abroad they should work by email, video call and power of attorney.
- Good communication. You’ll need to end the initial call knowing more than you did before.
Questions to Ask in Your Initial Consultation
- How many military divorces have you managed over 12 months?
- How do you get retirement and disability effects in a decree?
- What if my spouse is being deployed during the case?
- What are your fees and what could increase the final bill?
- Can I work with you while I am home overseas?
Trust your instincts as well. If you’re in an urban setting and someone is rushing you or is unclear about fees, it’s a red flag.
3. How Much Do Military Divorces Cost and Are They Cost-Free?
How much does a military divorce cost? Costs can range from a few thousand dollars in an uncontested case with few assets to over $15,000 for a dispute over retirement and custody. When you meet with any military divorce lawyer, inquire about hourly vs. flat fees upfront, and document your agreement. Before you commit to any attorney military divorce fee, make sure you understand how it is structured.
Before you hire anyone, use the free help available to you:
| Resource | What It Offers | Limits |
| Lawyer installation legal (services often JAG) | Complimentary advice and entry-level services | Unable to speak for you in a court of law. |
| Military OneSource | Bureaucratic, and need some assistance to find the nearest legal aid office in your county? | Not a law firm |
| Private military divorce attorney | Complete display of presence, drafting of decree, attending the court. | Cost of case by case |
Begin with the free options. They must increase the value of your paid attorney’s time.
What I Told My Brother in That Parking Lot.
I gave him three pieces of advice:
- Take a deep breath. You are not expected to have all of this solved today.
- Collect your documents. Prepare your orders, pay statements, marriage date, and service dates.
- Ask an expert. Seek a person who does this on an everyday basis.
All three, he went through, and he said afterwards to me that it was the best money he spent all year.
Divorce is hard enough, but trying to navigate military divorce while you are serving your country is one of the hardest things you will ever have to go through. Though, you don’t have to go through it alone. With an excellent military divorce attorney and an understanding of the process, he, or she can help you and your family retain your career, your benefits and your future. Hiring the right attorney military divorce specialist is the first step toward protecting all of it.
FAQs
Can I Get Divorced While on Deployment?
Is there a protection if the process needs to be followed? Yes. The SCRA gives service members up to 90 days at the beginning of a case if the proper forms are filed and an attorney can help you use it.
Will My Spouse Inherit Half of My Pension?
No. Courts allocate retired pay from the military as state law and the circumstances of your case.
Can I Get a Share with Only 10 Years of Marriage?
No. The 10/10 rule has no impact on whether the DFAS will remit payments directly to the spouse.
I Want to fromTRICARE?
You keep it if you follow the 20/20/20 rule and do not remarry. With 20/20/15 you are eligible for a year of transitional coverage. Alternatively, CHCBP may provide temporary coverage if you apply within 60 days.
If My Spouse Later Starts to Receive VA Disability Pay, Can a Court Compensate My Portion?
Not by decrees ordering reimbursement. The Supreme court’s Howell v. Howell ruling,8 prevents that, so the decrees must be come up with carefully.
Additional Resources:
- Military OneSource Legal Assistance: Free legal help for service members and families, covering divorce, custody, USFSPA and SCRA questions. It also links to the Legal Services Locator for finding your nearest installation legal office.
- DFAS Former Spouses’ Protection Act (USFSPA): Official Defense Finance and Accounting Service guidance on how former spouses can receive direct payment of military retired pay, including how to apply.
- TRICARE: How Does Divorce Affect Your TRICARE Benefit?: Official TRICARE guide to former spouse coverage, including the 20/20/20 and 20/20/15 rules and how to update DEERS after a divorce.
