Know the Regs: Issues in Military Divorces, Child Custody & Support Matters

By Kristopher Smull, Family Law Attorney

Many members of our military are in the National Guard and Reserve. As such, they can be called to active duty at any time. If a service member’s unit is activated and their former partner attempts to change the agreed upon child custody status while he or she is deployed, the service member can invoke their rights for a stay of court and administrative proceedings under the Servicemembers Civil Relief Act (SCRA). It is important to note, however, that this protection does not apply to any criminal court or criminal administrative proceedings.

SCRA provides for an automatic stay (or postponement) of 90 days in court or administrative proceedings when the protection is requested in writing. Additional delays beyond the mandatory 90-day stay period are granted at the judge, magistrate, or hearing officer’s discretion.

There are other special considerations military members and their spouses should keep in mind when divorcing. Did you know:

• Military benefits such as Basic Allowance for Housing (BAH), hazardous duty pay and special allowances for medical and aviation personnel, will be considered in determining spousal and child support. In short, if it is listed on your Leave & Earnings Statement, consider it part of your gross income.
• The federal Uniformed Services Former Spouses Protection Act (USFSPA) governs the calculation of military pension benefits, but state laws determine how retired pay is divided. It is important to note that the USFSPA does not mandate the splitting of retirement pay. If you are awarded a portion of the service member’s retired pay, your divorce decree must explicitly state the percentage. The courts will treat it like property or benefits in a civilian divorce.
• Even if you and your spouse agree to a division of the marital portion of your military pension in excess of 50 percent, the Department of Defense will only pay your ex 50 percent. Any amount in excess of that will need to be settled and paid independently.
• Under the USFSPA a former military spouse is eligible for full medical, exchange and commissary privileges when the following factors apply:
  • The marriage lasted at least 20 years.
  • The military member performed at least 20 years of service creditable for retired pay.
  • There was at least a 20-year overlap of the marriage and the military service.

If the former non-military spouse remarries, eligibility for benefits ends. If the subsequent marriage ends in divorce, the benefits are reinstated.

As is often the case in divorces, other factors may be considered in the division of benefits for spousal and child support. That is why it is important to work with skilled legal professionals who have experience in and knowledge of the special challenges presented by military divorces—professional PA divorce lawyers like the family mediators at Colgan & Associates.