In a military divorce involving children, parenting time is a major consideration and should involve a parenting plan.
By Kristin R.H. Kirkner, BCS
A divorce involving a military family is different from a civilian family because we need to account for frequent moves, or a permanent change of station (PCS). Just because a spouse knew that PCS’s were a part of the package when getting married doesn’t mean that the spouse is going to be accommodating in a divorce! It is helpful to anticipate and plan for a PCS when structuring a timesharing plan.
In Florida, the courts use the terms “time-sharing” or “parenting plan” instead of “custody” or “visitation” like the courts in some other states use. Parenting time is separate from “parental responsibility”, which basically means decision making for the child. Although I am only discussing timesharing in this entry, a Parenting Plan will address the division of both parental responsibility and timesharing between the parents.
When structuring a time-sharing plan, you need to first consider the viability and cost of the timesharing when taking into consideration the distance between the parents’ homes. For example, it is a nice idea to have a parenting plan that allows for alternate weekends, but if one party lives in Florida and the other lives in California, alternate weekends aren’t going to work because most families do not have the funds to fly children across the country multiple times each month, and it is probably not in the children’s best interests to spend the majority of their weekends traveling.
One option that I find works for families where frequent PCS’s occur, and where the children will reside with the non-service member parent, is to set out several different time-sharing plans based on the distance between the parties’ homes. For example, we would have one timesharing plan that applied if the parties lived in the same city, another for if the parties live in the same state and yet another if the parties live in the same country. This takes time, patience and a lot of work on the front end to work through these different scenarios, but the goal is to keep the family out of court in the future and to create a parenting plan that will work for the family in the long run.
If the child is going to reside with the service member parent, it is helpful to have a clause that allows for free relocation. In Florida, the statute provides that a parent can not relocate more than 50 miles away from their residence at the time the prior Order was entered without a court order or the consent of the other parent. There is nothing more stressful than trying to PCS and having to worry about whether your child will be coming with you to the next duty station! A free relocation clause is invaluable if one can be negotiated, as it will prevent future litigation and a lot of heartache. I will discuss relocation in a future blog, as relocation is a huge subject in itself, it merits mention here because it tends to disproportionately affect military families.
It is critical to hire an attorney who specifically handles military divorces and who understands both the cycle and nature of a PCS. As a military spouse, I am in a unique position to understand the difficulty and impact that a PCS can have on the family and to help you develop a parenting plan that will meet your needs. If you are considering a military divorce, or if you have a parenting plan that just isn’t working for your family, please fill out the form below or call my office to schedule a consultation.
Find out if the spouse is entitled to retirement, benefits and more.
By Kristin R.H. Kirkner, BCS
Unlike a civilian employer, the military offers some continued benefits to former military spouses after a divorce, provided that certain criteria are met. One of the most common questions I am asked is if the former military spouse has any entitlement to the service member’s retirement. The answer is yes. Retirement is an asset that is divided regardless of the length of the marriage, as discussed in some of my other articles. In addition to the division of retirement, a former spouse may also be entitled to commissary and BX/PX privileges, healthcare and dental coverage.
When considering what a spouse may be entitled to receive in a divorce, the baseline consideration is the length of the marriage, the length of the service, and the overlap between the marriage and the military service. In order to retain any benefits, the marriage must have lasted at least 20 years and the service member must have served at least 20 years total. The difference in benefits comes in the amount of time that the service and the marriage overlap.
Do your years of marriage and years of the service member’s military service overlap?
A spouse who has been married less than 20 years or who has less than 15 years of overlap between the marriage and the military service has some limited benefits, but not as many as a spouse has been married to a service member for twenty years, with each of those twenty years overlapping with the amount of time served by the service member. Below you will find the breakdown for the difference in benefits a spouse receives based on the years of marriage, years of service and the overlap between service and the marriage.
A “20/20/20” spouse (20 years married, 20 years of service, 20 years of overlap) can retain nearly identical benefits to those he or she had prior to the dissolution. A 20/20/20 spouse will enjoy full commissary and BX/PX privileges. These privileges will be suspended if the spouse remarries, but will be reinstated if the subsequent marriage ends. A 20/20/20 spouse is also entitled to continue on TriCare and dental until the spouse is eligible for coverage through an employer sponsored health plan or until remarriage, however; if the employment or subsequent marriage ends, the health and dental coverage can be reinstated.
A “20/20/15” spouse (20 years married, 20 years of service, 15 years of overlap) does not retain commissary and BX/PX privileges. A 20/20/15 spouse is eligible for medical coverage for one (1) year and after that one year, the spouse is eligible for coverage under a DOD-negotiated conversion policy, for which the former spouse must pay monthly premiums. The healthcare coverage for the spouse terminates upon remarriage, but can be reinstated if the subsequent marriage ends within the one year time period from the date of dissolution.
Less than 20 years of marriage OR Less than 15 years of marriage/service overlap
A spouse who has been married less than 20 years or who has less than 15 years of overlap between the marriage and the member’s military service is eligible for 36 months of coverage under a premium-based, DOD Continued Health Care Benefit Program. This coverage option terminates on remarriage and cannot be reinstated. A former spouse who is not entitled to BX/PX privileges would not get a military ID card, but may be eligible for an agent card to access the base in order to obtain medical care and benefits for the parties’ minor children.
Who decides what the spouse receives?
Keep in mind that the service member can neither grant nor deny these privileges to the spouse in the divorce. It is wholly a decision made by DFAS based on the length of the marriage, and the length of the service. It is also important to note that the benefits offered by the military to former spouses begin on the date that the final judgment is entered. During the pendency of the divorce, the spouse retains all benefits afforded to a spouse during marriage.
Have more questions regarding military divorce? We are legal experts in family and marital law, and can help. Get in touch with us today, or send a request here if you would like our office to contact you.
Who has jurisdiction over my divorce? What if I’m deployed during my divorce proceedings? Answers to all your Military Divorce FAQs.
By Kristin Kirkner, BCS
Can the JAG office handle my divorce?
The Judge Advocate General (JAG) office can give general information, but JAG officers are not able to represent you in a divorce. In addition, this isn’t criminal court so there is no right to a free attorney in a divorce case. You will need to retain a private attorney to represent your interests in the divorce.
Does Florida have jurisdiction over my divorce?
Jurisdiction has three basic components: 1.) Subject matter jurisdiction, 2.) personal jurisdiction and 3.) jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is jurisdiction over the child. In some dissolutions, particularly involving service members and their families who may have PCS’d one or more times during the marriage, Florida may not have jurisdiction to divorce you, even if one of the spouses is living in Florida. Ideally, both parties presently reside in Florida and/or are Florida residents, and the minor children will need to have been living in Florida for six months prior to filing for the divorce. Jurisdiction is a very complicated and fact specific issue and one that needs to be addressed first in any divorce case.
Can I get divorced in Florida if I am on a deployment or have PCS’d overseas?
In some circumstances, yes. If Florida otherwise has jurisdiction in your case, you may proceed with a dissolution while residing outside of the State of Florida if you’re on military orders. If you are living overseas and do not want to proceed with the dissolution during a deployment or when living OCONUS, the Service Member’s Civil Relief Act will, in many circumstances, allow you to get a stay for the divorce during the time that you are unavailable due to military service.
Can I participate in a court proceeding if I am not physically present in Florida?
Yes! Most judges allow telephonic or video conferencing for hearings, depositions and mediations, provided that the correct procedures are followed prior to the court proceeding. If you are not here in Florida, it is especially important to have an attorney physically present to represent you in court. I regularly communicate with all of my clients via email, phone and videoconferencing. The courts have moved to an electronic filing system, so participating in your case from a distance, whether the distance is due to a PCS, a deployment or a TDY, is something that our firm is experienced in handling.
Will I still receive my Basic Housing Allowance (BAH) with dependents after I get divorced?
If you have minor children that you are legally obligated to support, you are eligible for BAH at the “with dependent” rate even if you are no longer married.
Can my spouse keep TriCare after we get divorced?
Eligibility for TriCare depends on the length of the marriage, the length of the service and the overlap between the marriage and the military service. A 20/20/20 spouse (20 years married, 20 years of service, 20 years of overlap) is eligible for TriCare on a long term basis in most circumstances. A 20/20/15 spouse (20 years married, 20 years of service, 15 years of overlap) is eligible for TriCare for one year after the divorce is final. With the rising cost of health insurance, TriCare can be a valuable asset in a marriage for the spouse who does not otherwise have insurance available, however; the member can neither grant nor deny the spouse the insurance, it is wholly a decision made by DFAS based on the length of the marriage and the length of the service.
Will my spouse get a portion of my military retirement?
This is one of the biggest and most important questions I get. The Uniformed Services Former Spouses’ Protection Act (USFSPA) grants the state courts express authority to distribute “disposable retired or retainer pay” in dissolution proceedings according to state law. See, Pub. L. No. 97-252, § 1002(a), 96 Stat. 730 (1982) [codified at 10 U.S.C. § 1408(c)(1)]. In Florida, military disposable retired pay is a divisible asset, and the court will divide the portion of the retirement that was earned during the marriage, regardless of the length of the marriage, to the spouse. In order for DFAS to honor that division, the court dividing the property must have jurisdiction over the member by reason of (A) residence, other than because of military assignment, in the territorial jurisdiction of the court; (B) domicile in the territorial jurisdiction of the court, or; (C) consent to the jurisdiction of the court. DFAS will make direct payment to the spouse if there is ten years of overlap between the marriage and the military service. If DFAS won’t make direct payment, the service member must pay the spouse the funds directly, as they are received by the service member.
Military Divorce isn’t easy; these tips will help prepare you for the process.
By Kristin R.H. Kirkner, B.C.S.
I often find that the more prepared my clients are coming into the military divorce process, the more efficient and cost effective I can be for them throughout the divorce. A little bit of effort and pain in the beginning can pay dividends in the long run! If you are thinking about getting a divorce, and you are a service member, below are some steps you can take to put yourself in the best position possible to move forward and be proactive in the military divorce process:
1. Find a counselor or mental health professional: In all but the rarest of circumstances, I will ask and encourage my clients to get marital counseling and try to reconcile the marriage before proceeding, particularly if there are children involved. Even in cases where the marriage can’t be saved, divorce puts good people into one of the most difficult and stressful times imaginable. Divorce is devastating emotionally and financially and you need a support system in place from the beginning. Take advantage of the benefits available through TriCare or on base.
2. Get your financial affairs in order: One of the essential components of the divorce process is the division of assets and liabilities. I depend on my clients to tell me what they have, where it is located, and in whose name it is held. Get current statements for each account, pull a credit report and start by making a list of all assets and liabilities so we can figure out the most realistic outcome and develop goals and strategy for the dissolution. While you are at it, make a budget for after separation. The court looks at the needs and ability to pay of each spouse when determining spousal support, and that can’t happen without a realistic budget in place. Be sure to consider your retirement in this division of assets as Florida divides the marital portion of the military retirement equally between the parties and the marital portion is calculated from date of marriage to date of filing, which means that a long separation is not beneficial to the service member when it comes to division of their military retirement.
3. Encourage and assist your spouse to find employment if he or she is not working: The reality is that in most situations, both parties are going to have to work outside the home in order to support two households. If your spouse isn’t working, help him or her build a resume, seek employment and get the training needed to increase their earning capacity. The greater the spouse’s income, the lower their need for spousal support will be. Even though you will be divorced, their success is to your benefit because it will mean less financial support during and after the divorce.
4. Get involved in your children’s community: If you are not already doing this, get to know your children’s teachers, friends, doctors, tutors and coaches. You will need to develop relationships with these people separate and apart from your spouse after the divorce, and the time to start is now. You will need to decide how their daily lives are structured in each home after the divorce, and the only way to do that is to know the key players in their lives.
5. Talk to your spouse about the dissolution and expectations: At the end of the day, this is your family and you and your spouse are in the best position to make decisions for your finances and your children. The more agreements you and your spouse can reach, the less you will have to pay attorneys to do it for you in court. Don’t get into financial negotiations until after you have consulted with an attorney and have educated yourself about the likely outcomes in court, but you can, and should, discuss the logistics of living arrangements and parenting time with your spouse.
Still have questions regarding military divorce? If you would like to schedule an appointment with me to discuss your case, please fill out the form below and my office will be in touch with you for scheduling.
Kristin R.H. Kirkner 1 of 8 in Florida to earn BCS in Family & Marital Law
We were pleased to announce that our very own Kristin R.H. Kirkner earned the Board Certification in Family and Marital Law at the end of May, however; it has now been released that only 73 attorneys in the entire State of Florida who were awarded this elite certification, and only 8 attorneys were named Board Certified in Family & Marital Law. There is no official count on how many attorneys took the exam but it is estimated that approximately 100 attorneys took the exam for the Family & Marital Law area of expertise. Check out the full article as posted on the Florida Bar’s website.
Kristin is an expert in divorce, military divorce and family law in the Tampa Area of Florida. With situations as sensitive as divorce, paternity, child support, child custody and more…don’t you want a Board Certified legal expert working for you?