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.