Whether you are the service member or spouse, you need a competent attorney with experience to handle your Military Divorce. A Military Divorce deals with the same main issues as any other divorce: Child Custody, Parenting Time (Visitation), Child Support, Spousal Support (aka alimony or spousal maintenance) and Property Division. However, the details and intricacies of each issue can be far more complex in a Military Divorce.
Where to File?
In order to file for divorce in Indiana, the service member or spouse must reside in Indiana, or be stationed at a military installation within the State for at least 6 months before filing for divorce. In most cases, if the service member’s “Official Home of Record” is listed as Indiana, then he or she may file in Indiana. Similarly, the state in which the service member files his or her income tax returns could be a starting point to determine whether that state would also have jurisdiction over the parties, the divorce action, child-related issues, and property-related issues.
State law or Federal law?
There are two important federal statutes that come into play with military divorces. The first is the Service members Civil Relief Act (SCRA), formerly known as the Soldiers and Sailors’ Civil Relief Act. The SCRA applies to active duty members of the military in a variety of legal matters. In divorce proceedings, it allows the service member to obtain a “stay” or postponement of the case. This is not an automatic right, however. The service member must show that his or her military service materially affects the ability to appear in court, or deal with a pending court case. Specifically, the service member must submit in writing the following information to the court:
- How military requirements materially affect the service member’s ability to appear (such as deployment);
- The date when the service member will be available to appear; and
- Communication from the commanding officer stating that duty prevents appearance and leave is not authorized.
If this information is proven, then the court must grant a stay or postponement of at least 90 days.
The second important federal statute in military divorces is the Uniformed Services Former Spouses’ Protection Act (USFSPA). This applies to both service members and spouses in divorce proceedings. One benefit for both parties is the framework for dividing Military Retired Pay, or the “10/10 Rule”. The 10/10 Rule states that the parties’ marriage and the service member’s military service must have overlapped by 10 years before DFAS will pay a portion of the Military Retired Pay to the (former) spouse. However, the state court still has the power to divide Military Retired Pay regardless of the length of marriage. The 10/10 Rule just applies for DFAS to set up automatic payments to the former spouse. The state court can divide the Military Retired Pay and require the service member to pay the former spouse directly.
Aside from state and federal laws, there are also military regulations that apply when service members separate from their spouses and/or children. One common regulation is Army Regulation 608-99: “Family Support, Child Custody and Paternity”. This requires soldiers to pay temporary support to spouses upon physical separation even if a divorce has not been filed yet. The amount is based on the “non-locale” BAH-II rate with-dependents. If both spouses are in the military with children, then different rates are considered.
If you are physically separated from a service member and there is no court order in place for support, then you may want to consider asking your spouse to set up a voluntary allotment for you. A voluntary allotment will automatically deposit money into your account when the service member gets paid. It can be set up for the 1st or 15th day of each month, or both. While this is the quickest and easiest way to receive financial support, the soldier is ultimately the person who has to set it up. DFAS will not create an allotment for financial support without the soldier’s consent or a court order. You may also receive a higher amount of support if you went to court without settling for the voluntary allotment based on the BAH-II rate. Indiana courts do not calculate child support or spousal support solely on the BAH-II rates with or without dependents.
Child Custody in Military Families
While stability and the child’s best interests are important factors for the courts to consider when awarding or modifying child custody, they are not the only factors. Military families carry the stigma that they “move around too much” or “aren’t stable for children” when both allegations are completely false. Again, a wide variety of factors come into play when a court looks to award or modify child custody. The Indiana Code actually addresses this issue in Section 31-17-2-21.3 titled, “Parent’s active duty service not a factor; temporary modification of custody”. Specifically, the statute states, “A court may not consider a parent’s absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order.” This should encourage parents who would otherwise not request custody of their children due to their military service.
In short, there are many factors to consider when an active or retired military spouse is involved in a divorce. An experienced attorney can help you negotiate the settlement of military benefits in accordance with the relevant Indiana state divorce laws that cover father’s rights/mother’s rights, military pension and spousal support.