When either or both spouses are in the military, there are a few issues that need special attention if the spouses divorce:
- child support calculation
- whether the servicemember is on active duty and deployed
- division of military retirement benefits (i.e. military pension)
First, as in any family law case, child support is based on the income of the parents. The definition of income includes all types of pay: base pay, sea pay, combat pay, flight pay, etc. Additionally, the housing allowance (BAH) and subsistence allowance (BAS) are also included as income. It is important to recognize that not all of these sources of income are treated the same – some are not taxed and some change after divorce. In order to perform a correct child support calculation, all income sources must be included and treated correctly.
Second, a civil action (such as a divorce or paternity case) can be postponed based on the provisions of the Servicemembers Civil Relief Act of 2003. Under the terms of this law, the postponement lasts for at least 90 days. Due to deployment status, an additional delay can be requested. This law is a protection afforded to military servicemembers and can be waived.
Lastly, Florida law classifies a military pension as a marital asset if the military service occurred during the marriage. The portion of the pension the non-servicemember spouse can receive is based on the part of the marriage that occurred during the military service.
For example, assume that – while still unmarried – the Husband joined the military. Five years later, he gets married. After ten years of marriage, he gets divorced. He then serves another five years to complete his 20 years of service.
When determining the Wife’s portion of the military pension, the first question that needs an answer is “what part of the pension is marital property?” In this situation, the parties were married for 120 months (i.e. ten years) of the Husband’s 240 months (20 years) of service. So, 50% of the pension is marital property (the other 50% is not marital property and is retained by the Husband). Since each spouse in entitled to half of the marital assets, the Wife would get 25% (half of 50%) of the Husband’s military pension.
A spouse would only receive half of the pension if the parties were married for the entire length of the military service.
Additional complications arise if:
- the servicemember spouse advances in rank after the divorce,
- the servicemember spouse divorces while serving in the military and continues serving for over 20 years.
- Some part of the servicemember’s service was in the National Guard or Reserves.
To help with the unique issues that arise during the divorce of a military servicemember, please contact an experienced military divorce lawyer in Orlando, Florida.