If you are facing a military divorce in Charleston, attorney Stephan Futeral has handled family law cases for over 20 years. Before becoming a Charleston military divorce lawyer, Mr. Futeral served in the US Army and the Army National Guard. As a former member of the armed forces and as a lawyer, Mr. Futeral understands the issues involved when dealing with a military divorce in Charleston. This article covers many of those issues.
Service Members Civil Relief Act
The Service Members Civil Relief Act (SCRA), formerly known as the Soldiers and Sailors Relief Act, delays family court proceedings that might harm a service member’s rights if the case went forward while they are on duty. Because the SCRA may postpone family court hearings until the service member can appear in court, military divorces can take a more time than civilian divorces. One consideration under the SCRA is whether the service member has accrued leave that he or she could use to appear in court. The service member’s current Leave and Earning Statement (LES) shows whether the service member has accrued leave. However, there may be issues regarding children that need to be resolved quickly. For example, if a service member successfully requests a delay in family court proceedings under the SCRA, the family court judge still may issue a temporary order of custody.
Regardless of whether a family court case is delayed under the SCRA, there are military regulations that require service members to support their spouse and their children. If the armed forces member fails to support their family, these regulations provide for disciplinary action against the service member. Although these regulations set forth support calculations which are oftentimes different than the amount of child support calculated under South Carolina’s Child Support Guidelines, there is typically enough support until such time as the parties can appear in family court.
Residency and Family Court Jurisdiction in South Carolina
Issues may arise whether South Carolina’s family courts have jurisdiction over the parties based upon the couple’s residency. Typically, military personnel are not stationed in their hometown, they do not take up permanent residency at their duty station, or they are likely to be transferred or deployed to other duty stations. Under South Carolina law, if one spouse lives in another state, the other spouse must have lived in South Carolina for a year to file for a divorce here. To make matters more complicated, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) provides that the family court has jurisdiction over custody and support issues when a child has lived in South Carolina for at least six months. If the child is less than 6 months old, other factors come into play including which state the parties conceived the child. In one military divorce handled by Mr. Futeral, the client lived in South Carolina for less than a year, but the child had been in South Carolina for 6 months. Under those circumstances, the family court in Charleston had jurisdiction to issue orders regarding the mother’s custody of the child and for child support, but the court did not have jurisdiction to order the sailor to pay alimony or to grant the parties a divorce. The service member tried to use the issue of jurisdiction to his advantage by refusing to consent to allow a South Carolina family court judge to decide issues of alimony and the divorce. However, using military regulations, the military commanded the service member to pay spousal support, and ultimately the service member later consented to jurisdiction in South Carolina.
Service Member’s Income
Calculations of child support and of alimony awards are based on each parties’ income. Determining a service member’s income is not as straightforward as it may be for civilian employees. A service member’s income includes base pay, a housing allowance, pay for hazard duty and for other assignments, and “in-kind” compensation in the form of housing, meals, and other non-monetary compensation. Much of that information can be found on the service member’s LES.
Military Pensions and the 10-10 Test
Under the Uniform Services Former Spouse Protection Act (USFSPA), South Carolina’s family courts can divide a military pension just like any other martial asset. Although civilian employees typically can cash out early or borrow from their retirement plans, service members cannot receive military pension benefits until at least 20 years of service (Reservists or National Guard must acquire a certain amount of “points” to be eligible). When dividing a military pension, it is necessary to calculate the service member’s disposable retired pay which is the amount remaining after deducting the following items from the pension:
- advanced pay;
- forfeited amounts or fines from disciplinary actions;
- waivers in exchange for enhanced civil service retirement benefits;
- waivers in exchange for disability pay, and
- deductions for a survivor benefit plan.
Contrary to popular belief, you can get a share of a military pension if you’ve been married for less than 10 years. The “10-10 test” refers to a rule that triggers garnishment of the pension. Essentially, if the service member has served at least 10 years and the parties were married for 10 years during the member’s military service including “creditable service” in the Guard or Reserves, then DFAS divides the monthly pension check and sends the correct portion to each ex-spouse. Otherwise, if the “10-10” test isn’t met, then the family court still awards division of the pension, but the military spouse is responsible for making the monthly payments to the ex-spouse.
The basic criteria is that the marriage must have lasted at least 20 years, the military member served for at least 20 years, and the marriage overlapped with the member’s military service for at least 20 years. If those criteria are met, a former spouse remains eligible for Tricare coverage for the rest of their lives unless they remarry. If the marriage lasted at least 20 years, and at least 15 of those years overlapped with the member’s military service, then the former spouse remains eligible for Tricare for one year after the date of the divorce.
Dividing the Military Pension
There are typically three ways to divide a military pension. First, the court may award a percentage of the pension. Second, the court may award an exact dollar amount from the pension. Third, the court may award money or other assets in lieu of a share of the military pension.
If a civilian spouse receives the pension’s value “now” instead of waiting until the service member is eligible, the pension’s “present value” must be calculated. Oftentimes, this calculation requires the services of a Certified Public Account or an appraiser who has experience in valuing military pensions.
Some things to consider when dividing a military pension:
- Are the years of service more than the years of the marriage? Will the military spouse remain in service after the divorce? If so, what fraction will be used to provide a fair share of the pension to each party?
- Consider the “COLA” (cost of living adjustment). Over time, the COLA increase can be substantial. If the court order gives the ex-spouse a fixed dollar amount of the pension, there will be no COLA.
- There is a difference between “gross retired pay” and “disposable retired pay.” In some cases, “gross” pay means a larger amount of the pension share. DFAS will not accept an order that uses the term “gross retired pay.”
- If a civilian spouse receives a percentage of future retirement pay, the value of the pension may be reduced after a divorce if an eligible service member decides to receive disability payments by waiving a similar (sometimes equal) amount of retirement pay. Unlike a military pension, disability pay is not subject to equitable division in family court. So, it is important to address this contingency during the divorce so that the civilian spouse is not “short-changed” in the future. One way of avoiding this unjust result is to include in a court order a “reimbursement” clause that requires the retiree to pay back the former spouse for any loss of pension share.
A family court order dividing a military pension must be sent to the Defense Finance and Accounting Service (DFAS). A former civilian spouse may receive direct payments from DFAS if:
- There is a “final” (no longer appealable) order of divorce dividing the military pension which meets the following requirements: The order includes the parties’ names, addresses and Social Security numbers;
- The order specifies that DFAS will make the payments;
- The order states the amount or percentage in one of four acceptable formats;
- The order is sent to DFAS with DD Form 2293 and a certified copy of the divorce decree; and
- The order complies with all other DFAS rules
- the service member is retired/retiring; and
- the 10-10 test applies.
The address and fax number for DFAS is:
Defense Finance and Accounting Service
U. S. Military Retirement Pay
PO Box 7130
London, KY 40742-7130
Under a single court order of support regarding a service member, DFAS will not pay out more than 50% of the member’s disposable retired pay. If there is a second order (such as an order of child support from another divorce), then DFAS will not distribute more than 65% of the member’s disposable retired pay on the combined family court orders, and DFAS pays them in the order it received them.
Survivor Benefit Plan (SBP)
A Survivor Benefit Plan (SBP) is essentially an insurance benefit that pays a portion of a deceased military retiree’s pay to a beneficiary, such as a spouse. Otherwise, if there is no SBP, then the deceased retiree’s pay stops at death. A SBP is funded in part by the government and by monthly deductions from the service member’s retirement pay. There are different levels of coverage depending on the premium paid by the retiree, but the maximum coverage is 55% of gross retirement pay.
When a military couple divorces, the former spouse automatically loses eligibility as an SBP beneficiary. However, SBP coverage after a divorce can be either ordered by the family court, agreed upon by the parties, or done voluntarily by the retiree. Regardless of whether coverage for a former spouse is by an agreement or by a court order, that coverage will not take effect unless and until a formal application for a change in status is made to the Defense Finance and Accounting Service (DFAS) within one year of the divorce. If there is an agreement or a family court order requiring continued coverage, but the military retiree refuses to or fails to contact DFAS, then the former spouse may make the election by making a written request to DFAS. This written request is known as a “deemed election” request. The “deemed election” must also be made within one year from the date of the court order or agreement, and a certified copy of the order or the agreement must be included with the written request.
Coverage is suspended (not terminated) if the former spouse remarries before the age of 55. If the former spouse’s new marriage ends by divorce or death of the new spouse, then coverage resumes. If coverage was voluntary (not be court order or agreement), then the retiree can stop it at any time. If coverage was by an agreement or a court order, then as long as the former spouse is alive, the retired service member cannot name his or her current spouse as a beneficiary unless the ex-spouse formally waives the benefit in writing.
Health Care Coverage After a Military Divorce
After a divorce, the non-military spouse has two options:
TRICARE – For TRICARE coverage, the parties must have been married for at least 20 years during the service member’s active service as explained above (20/20/20). If the former spouse has other insurance coverage, TRICARE is secondary and gets billed for anything the private insurance doesn’t cover. If the former spouse remarries before 55, then that spouse will lose TRICARE coverage.
Continued Health Care Benefit Program (CHCBP) – A former non-military spouse who isn’t eligible for TRICARE may buy conversion health coverage. If the military member leaves the service, then the former spouse who buys CHCBP is covered for 36 months after the date of the divorce. A former spouse may also get coverage through CHCBP if:
The former spouse is entitled to a share of the service member’s pension or Survivor Benefit Plan coverage, the former spouse isn’t remarried below age 55, the former spouse pays quarterly advance premiums, and the former spouse meets application deadlines.