For Service Members in the military, our sincerest thanks to you for your bravery, dedication, and military service. If you are getting a military divorce, there are specific rules to follow. Whether or not you are able to get divorced in Alabama is dependent upon the Alabama Law, but whether military benefits can be distributed is dependent upon Federal Law.
In order to get a military divorce in Alabama, one or both parties must be an Alabama resident for a period of at least 6 months prior to commencing the military divorce; however, residency can be a tricky part. If Alabama is only your base station and not your home state, then it’s not considered to be your residence. The reason why residency is so important is because the statute (discussed below) gives states the right to divide military benefits, but only does this for the division of those benefits, such as pensions and Thrift Savings Plans. This only gives that right to the state of the service member’s residency, not the state where he or she may be stationed. If the non-military spouse is anticipating a portion of the service member’s retirement benefits, it’s extremely important that he or she understands this.
But, the service member can specifically consent to jurisdiction in Alabama for division of retired pay. If it isn’t clear from the beginning that the agreement is for Alabama to divide retired pay and not just for the divorce, then Alabama does not have jurisdiction or the right to make the division.
Though, there are many laws surrounding military divorce that do not exist in civilian divorces.
Formerly known as the Soldiers and Sailors Relief Act of 1940, the SCRA can be implemented to protect an action from moving forward when the service member is unable to participate in that action because of military service. When the service member is deployed or has other duty assignments that prevents participation or appearance in a litigation, the service member or counsel may contact the court, asking them to “stay the action” (put it on hold) under the service member’s rights under the SCRA. The length of stay will be dependent on the circumstances, which must be communicated with the court. In general terms, the stay can last for up to 90 days, but can be extended for a much longer period at the court’s discretion. (50 U.S.C. App. §§ 501-597) (formerly the Soldiers’ and Sailors’ Relief Act of 1940, the former Act of 1940 is applied for divorces prior to December 19, 2003).
Divorces being commenced by a spouse when a service member is deployed is not uncommon.Everyone should be aware of the fact that it can be stayed under the SCRA, so that the service member cannot be taken advantage of with the unfortunate timing of commencing such actions.
This is the Act (as mentioned above) that, in part, allows states to directly distribute retired pay to the spouse and allows the enforcement of state court orders distributing said retired pay. In addition, this Act provides for enforcement of child and spousal support orders of state courts, all done through the Department of Defense.
There are limitations to the amount of retired pay that the Department of Defense will pay, no
matter what the state order says is to be paid, and the amount allowed is of the disposable retired pay, not the full retired pay amount. If there is no obligation for payment of child support or spousal support, the Department of Defense will pay up to 50% of disposable retired pay. If there is spousal support and/or child support payable, then the amount rises to 65% of retired pay. To determine the disposable retired pay is the net amount after total retirement pay is reduced by most disability pay, and debt repayment due the federal government, any fines or forfeitures that have been assessed and any Survivor Benefit Plan premium. (42 U.S.C. §659).In addition, this limitation on payment from disposable retired pay does not limit the state court from making an order higher than this percentage. If that occurs, the service member has to make direct payments to the former spouse for the difference between what the Department of Defense will pay and the total payment ordered. This makes sense in that certain reductions of retired pay reach the disposable amount and may not be the responsibility of the spouse and the spouse would be penalized were the state court not allowed, and willing, to order the full entitlement to the spouse.
In drafting orders in the military divorce action, not only is it necessary to draft in a fashion that the Department of Defense will accept, but it is equally important to understand that the Act terminates payment upon the death of either party unless the state court orders something different, which could be either an earlier or other termination. Therefore, the experienced attorney will consider the possibility of the death of the service member resulting in a cessation of the spouse’s portion of retirement pay and put an appropriate protection into place. One way to do this is with life insurance or the military Survivor Benefit Plan, but, again, the experienced attorney will discuss this with you. At the appropriate time.
This act does not trigger until the so called 10-10-10 rule, discussed below, for pension payments, spousal support and child support as are determined by the orders of the state courts that have jurisdiction to make the pension division orders.
Application for payments pursuant to court order must be made within 90 days of the order being issued, even if it is for retired pay which is not yet due the member. Payment will generally begin 90 days after the order is approved if the member is already retired, or 90 days after the member becomes eligible for retired pay.
Though most service members are familiar with the following numbers, there are some misconceptions of their meanings:
If 10-10-10 has not been reached, but there is an entitlement to a portion of retired pay by the spouse, decided by Alabama laws, it will happen under state court order and be paid directly by the service member, not by the Department of Defense. It is a complete misconception that there is no entitlement whatsoever by the spouse to the service member’s retirement if 10-10-10 has not been reached.
Custody of your children has a set of entirely different considerations in families going through a military divorce. Though the courts always apply the same standard of “best interests of the child” in all custody cases, the service member may be transferred to a new base station or may be deployed. How will contact with the children, and the service members family, be maintained if there is a deployment? How will a custodial arrangement change if there is a transfer to a new base station, or an increase in rank, and pay, if a new base station is offered?
Over an entire career, service families are mobile and the service member is often at the mercy of command as to where they will be sent in the world, and for what purpose. The service member is often not able to become sedentary simply because a divorce has occurred. Again, this requires a military divorce attorney that is familiar with every consideration necessary for a service member, and their family, to retain a relationship with the children, someone with the wherewithal to work toward a negotiated agreement that includes all of the possibilities in view of the nature of the service members employment in the face of the need to maintain positive and ongoing contact with their children during times of their absence or relocation.
With the exception of the Air Force, this is one of the areas where Command will intervene, as they will require the service member to pay child and spousal support with no court order to do so. This amount will not be based on the Alabama statutes, which general order higher amounts than Command will mandate. As earlier stated, absent a court order, Command can, and will, require payment of child and spousal support, with the Air Force exception mentioned above. Here, the discussion is what happens when the issue of support get into the court system in a divorce and after an order is generated for payment. State court child and spousal support amounts are generally higher than what Command will require.
One must keep in mind that Alabama orders for child support or spousal support need to be drafted differently when they involve a service member. The Office of Personnel Management has to approve these orders prior to effectuating a garnishment against the service members pay. If the order is prepared by an inexperienced attorney, one that does not know the requirements of the OPM, time and expense will be wasted when the order is rejected by the OPM. Best to have an attorney that knows what is required by the OPM.
Sometimes garnishment or pay is not ordered and payment is made directly by the service member, which would make it seem that OPM requirements in the order would be irrelevant. But if a time comes where payment is not made, then, not only will there have to be a garnishment order, there will have to be an entirely new support order that meets the OPM requirements.
Keep in mind that the income on which child support and spousal support will be based is not based on your taxable income. Rather, it is based on your base pay, hazardous assignment pay, special duty pay, combat pay, housing allowance as well as “in-kind” allowances and compensation such as food allowances. One would think that income that the federal government deems free of taxation should not be included in these calculations, but that is simply not the case.
As is the case with all orders that involve garnishment of service member’s service pay or retired pay, the order must be submitted to the proper military pay center. Attorney’s experienced in military cases will know this and take care of it on your behalf. Again, the order must meet OPM requirements or the order will not be effectuated.
The considerations of the content of child support or spousal support orders are not limited to dollar amounts and compliance with OPM standards. There must be consideration taken as to when each child will no longer be entitled to support and how that obligation will terminate and whether it will happen automatically, which is rare, or whether you have to take action. There are similar considerations with spousal support if the service member is still in service, such as whether spousal support will reduce upon retirement, when the former spouse will be receiving income by way of the division of retired pay coming to them, or whether the former spouse is entitled to retired pay based on base pay increases post-divorce which could impact their support need.
In general terms, service members have their retired pay and a Thrift Savings Plan. The Thrift Savings plan can be divided by the Court and the former spouse can move their share to a different account, if they so desire. Retired pay is something very different. It is the actual stream of income that is divided, generally in a pro rata/percentage fashion. The result is not a dollar amount to which the former spouse is entitled that can be transferred to another account, it is merely the percentage of retired pay that comes upon the service members retirement, and only for the life of either party. If the service member dies, the stream of income stops. If the former spouse dies, the stream of income stops.
In anticipation of the possibility that the service member dies and the former spouse is then never able to receive the benefit of the retired pay, it is common to protect that income stream with a form of life insurance. Thus, Survivor Benefit Plan is offered by the military, which will continue that income stream. The quirk of the Survivor Benefit plans is that there can only be one beneficiary, so the children cannot be beneficiaries along with the service member’s former spouse.
A SBP can be obtained voluntarily or a court can order it. Again, the court order for it must comply with the required standards, including the base amount to be considered. SBP’s are a percentage of the base amount, chosen by the service member, or ordered by the court. These are vital in terms of protecting that stream of income upon the death of the service member.
A special note on disability pay is needed. On occasion, a service member will act to convert as much of their retired pay as possible to disability pay because the services will not pay out any portion of disability pay to a former spouse. The state courts, though, do not have that restriction and can order direct payment to the former spouse of any portion of that disability pay that the state court feels is appropriate.
These are only a fraction of the issues presented in military divorce. Hopefully it provides some information to help you in moving forward with a military divorce, knowing some of the considerations and obligations in being part of a military family and understanding the specialized skill set needed for representation of any service member or their spouse.