For members of the military and their spouses, a divorce is often more complicated and comes with a unique set of difficulties. Both state and federal law provides certain procedural safeguards for members of the military that must be carefully considered by both sides before any agreement is reached. When one party is on active duty or stationed overseas, the process becomes more difficult and can take longer.
Military divorces involving children are even more complicated because the parties have often have less flexibility when it comes to arranging child custody and visitation issues.
Attorneys for the Military Divorce in Seattle, WA
We can help you understand the special rules that apply to dividing military benefits including retirement benefits and disability benefits. The attorneys at Law Offices of Shana E. Thompson are experienced in representing military or former military men and women who are facing the prospect of filing for a divorce in King County, WA, at the courthouse in Seattle or Kent.
Contact our Seattle Divorce Attorneys at Law Offices of Shana E. Thompson. Call (206) 712-2756 today.
Where and When to File the Military Divorce Case
In most cases, military members and their spouses have three choices when it comes to which state to file for divorce. Those choices can include:
- the state where the spouse filing resides;
- the state where the military member is stationed; or
- the state where the military member claims legal residency.
Active-duty service members have special procedural protections that are intended to protect them during a divorce proceeding. The Servicemembers Civil Relief Act (SCRA) provides that a member of the military cannot be sued and divorce proceedings cannot begin while the member is on active duty or for 60 days following active duty.
Military Retirement Benefits in a Divorce
When one party has retirement benefits earned during the marriage, both federal and state law has special rules about how those retirement benefits can be divided during a divorce. In the State of Washington, military retirement benefits are treated as divisible property depending on when those benefits were earned and the length of the marriage.
In some cases, the former spouse can receive up to half of the disposable retirement benefits through direct payment from the federal government if that benefit is awarded in the divorce order. Special rules apply that require at least ten years of marriage during the period of military service.
Divorces and Restraining Orders Filed Against Active Duty Military
If you are an active duty member of the military, then military duty may keep you from being able to respond to a divorce or family law case. Your duties in the military might even make it impossible to attend hearings that are normally scheduled in these types of cases.
For these reasons, members of the military have special procedural protections or can file a stay in the case when they become aware of the divorce or another type of family law matter. The special procedural protections are intended to improve the fairness of the process and to avoid any manifest injustice that might otherwise occur.
Servicemembers Civil Relief Act (SCRA) in Divorce Cases
One of the most important protections for members of the military is the federal Servicemembers Civil Relief Act. SCRA covers:
- Air Force
- Marine Corps
- Coast Guard members on active duty
- National Guard members under a call to active service for more than 30 days in a row
- Commissioned corps of the Public Health Service and NOAA.
Under Washington law, the state Service Members Civil Relief Act covers Washington state residents who are National Guard or Reserve members under a call to active service for more than 30 days in a row and their dependents.
If you are covered by the state or federal Service Members Civil Relief Acts, then these special rules will apply.
The Division of Military Pensions
Enacted by Congress in 1982, the Uniformed Services Former Spouses Protection Act (USFSPA) provides protections to some former spouses of servicemembers. The USFSPA permits states to divide military disposable retired pay as marital property upon divorce.
Military pensions are property subject to division by a court deciding a dissolution action for divorce. Property not disposed of by the divorce court is held by the parties as tenants in common. For this reason, a surviving spouse's military plan not disposed of in a divorce decree is owned by the former spouse as tenants in common. Although, if a former spouse is aware of a benefit and does not assert a right then the interest can be relinquished or waived.
Under 10 USC § 1450(f)(4), the court may order “a person to elect ... to provide an annuity to a former spouse.” Under 10 USC § 1450(f)(3)(c), a former spouse has one year from the filing of the court order to protect his or her designation right even if the military spouse fails to make the court-ordered designation.
In deciding the SBP designation issue, the trial courts will often follow 10 USC § 1450(f)(4) when designating a beneficiary. For an agreement between divorcing spouses who are currently benefiting under the plan, a SBP designation may only be made within one year of dissolution based on 10 USC § 1448(b)(3)(A)(iii).
10 USC § 1072(2)(f) defines a “dependent” for military medical and dental benefit purposes as “the unremarried former spouse of a member or former member who: (i) on the date of the final decree of divorce, dissolution, or annulment, had been married to the member or former member for a period of at least 20 years during which period the member or former member performed at least 20 years of service ... and (ii) does not have medical coverage under an employer-sponsored health plan.
It is possible to get a direct payment from Defense Finance and Accounting Service (DFAS) of retired pay as property to the spouse if the spouse was married to the servicemember for at least ten years and for those ten years, the servicemember was in the service (commonly called a “10/10 Spouse”).
The court order must provide for payment from military retired pay in a specific dollar figure or specific percentage of disposable retired pay. The order must also show that the court has jurisdiction over the servicemember in accordance with USFSPA provisions.
In most cases, a family law attorney will prepare a Qualified Domestic Relations Order (“QDRO”) for this purpose. No direct payments in excess of 50% are permitted if there is more than one divorce. In cases where there are payments both under USFSPA and pursuant to a garnishment for child or spousal support, the total amount of direct payments to the former spouse may not exceed sixty-five percent of the disposable retirement pay.
Finding a Lawyer for a Military Divorce in King County, WA
The attorneys at Law Offices of Shana E. Thompson are experienced with representing service members from the different branches of the military during a divorce or family law case. Call for a consultation to discuss your case.
Our attorneys represent members of the Army, Navy, Air Force, Marine Corps, Coast Guard, and National Guard. We also represent the spouses of members of the military during a divorce or child custody case. Call (206) 712-2756 to schedule a consultation.
This article was last updated on Monday, March 15, 2021.