• Sorting myth from facts about military divorce

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  • Capt. Hyun Muñiz | Legal Assistance Office
    There are many differences between military and civilian life but surprisingly, divorce is not one of them. For the most part, divorce in the military is generally the same as divorce among non-service members because the process for both parties takes place in civilian courts.
    However, many soldiers and family members believe there are special rules when it comes to military divorce due to Army regulations mandating family care on a higher standard than the average civilian. If you combine these regulations with the ever persistent advice of “barracks lawyers” and slew of websites contributing their two cents about who is entitled to what, then military divorces seem confusing.
    Legal Assistance attorneys cannot represent a soldier in divorce court, but they will offer more accurate advice than “that guy you know who also got a divorce” and can reconcile service member obligations with state law better than an unofficial website.
    The typical soldier who seeks help from the Legal Assistance Office at Fort Leavenworth does so to avoid violating Army regulation. The client meeting generally goes like this:
    Soldier: “I was served with divorce papers. Now, I know since we’ve been married for 12 years that means I have to give her 50 percent of my retirement, but is there anything else I have to give her?”
    Legal Assistance attorney: “Who told you that you have to give 50 percent of your retirement?”
    Soldier: “I thought if you were married for 10 years or something …”
    He trails off as if expecting the attorney to fill in the rest. The rest of the phrase that practically everybody assumes is so common knowledge, they cannot even remotely entertain the idea that it is a myth and phrase of utter fiction.
    So, is a military spouse automatically entitled to a service member’s retirement based on duration of marriage or some other qualification? The short answer is no.
    When Congress passed the Uniformed Services Former Spouses’ Protection Act in 1982, the act stated a court may award a portion of retired pay to the former spouse and that the former spouse may receive that retired pay directly from the Defense Finance and Accounting Service if he or she is eligible for direct payment. This means that state courts have the option to treat military retired pay like marital property and divide that property like any other marital asset.
    So how are some spouses getting military retired pay? Most states, like Kansas and Missouri, are equitable distribution states, where the court divides assets “fairly.” Fair does not necessarily mean 50-50. The court looks at a variety of factors to see what each side contributed to the marriage. One factor is what a spouse has sacrificed to support his or her soldier’s military career. A spouse may convince the court that he or she has given up his or her career to support the service member’s career by taking on a lesser paying job or staying at home to take care of the children. As a result, this support and sacrifice contributed significantly to the service member obtaining military retirement. If the court is convinced, then it may find that it is “fair” and “equitable” that the supportive spouse receive a portion of that service member’s retirement. Because every circumstance is unique and different, there is no such thing as an automatic entitlement to retired pay.
    Page 2 of 3 - Duration of marriage is only relevant to DFAS. If the court decides to issue an order entitling a spouse to military retired pay and the couple’s marriage overlaps with 10 years of military service, then the spouse is eligible to receive retired pay directly from DFAS.
    But what about a soldier’s obligation under Army regulations? AR 608-99, “Family Support, Child Custody, and Paternity,” covers how much a family member is entitled to in the event of a separation, but the main thing to understand is that AR 608-99 is not so much for family members as it is for the commander. When a family member complains to the commander that a soldier is not providing adequate support, the commander needs guidance on how to resolve the issue. First, the commander will look to see if there is a court order or any other oral or written agreement that discusses the amount of support the soldier should provide. Only in the absence of a court order or a written or oral agreement will the commander consult AR 608-99 to see how much support a soldier should be providing the family member. The regulation limits this strictly to family members who live off-post in non-government housing and does not provide authority to collect arrearages (past due support).
    For example, an E-5 and his spouse and child live in government housing. They decide to get a divorce but before the divorce paperwork is filed or finalized, the spouse moves off-post with the child. After three months, the spouse wants the E-5 to provide financial support until the divorce paperwork is finalized. She complains to the commander and the commander looks to AR 608-99 and sees the soldier, based on his rank, owes his spouse $941 a month. The spouse wants to collect support for the past three months, but the commander can only order the soldier to pay from the date the complaint was made. Collecting back pay can only be requested in divorce court.
    AR 608-99 is a temporary solution until a divorce or separation agreement is finalized. Army regulations cannot dictate a separation/divorce agreement. When drawing up the divorce paperwork, the E-5’s spouse could not use AR 608-99 to say the soldier must pay $941 a month and the E-5 could not use the regulation to refuse to pay more than $941 a month. The regulation mainly guides the commander in the absence of an oral or written agreement. Just like civilian divorce, both parties are free to negotiate and dispute what the other owes in accordance with state laws.
    Unfortunately, even the most experienced divorce attorneys may fail to adequately reconcile Army regulation and divorce in civilian courts. On several occasions, the Legal Assistance Office has reviewed paperwork from a civilian attorney asking for 50 percent of a service member’s retired pay based solely on the advice of their client. Supported by a strong rumor system, the service member may just sign the agreement, trusting the civilian attorney is well-informed in military law, never knowing there was another choice.
    Page 3 of 3 - So here’s the bottom line — parties in a divorce are free to negotiate the terms of the divorce and matters of financial support, alimony, custody, etc., just like their civilian counterparts because the divorce will be filed in a civilian court system.
    Pretty much any agreement, even oral agreement (if both parties agree) overrides AR 608-99.
    There are no automatic entitlements to retired pay based on duration of marriage. Ten years of marriage makes a spouse eligible for direct payment from DFAS only after the parties or court decide he or she is entitled to retired pay. Like any divorce proceedings, assets are divided in accordance to the party’s wishes or what the state court decides is “fair and equitable.”
    Every divorce is unique. Do not consult barracks lawyers or the internet. Talk to Legal Assistance to receive general guidance and/or hire a civilian divorce attorney who is familiar with military divorces. Even if you know someone who you think had a similar situation to yours, divorce can be an ugly process and that soldier may not be airing all their dirty laundry and telling you the whole story. These kinds of details result in outcomes that could be entirely different from your own situation.
    If you have a civilian attorney representing you that has questions about military divorces, have them review the USFSPA or call Fort Leavenworth’s Legal Assistance Office on your behalf.
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