Military Divorce: Divorce When Spouse Is In The Military

By Author: B Beetham
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What law controls?

Although the military is a federal body, Washington State law controls the legal issues concerning your divorce. That means each state is different on how the law applies to a divorce. It is important to assure that Washington State has proper jurisdiction over your case. Jurisdiction is the ability of a court to issue decision is your case and make rulings with respect to your marriage, assets, children, and child support. Generally, if you and your children have lived in this state, jurisdiction will not be an issue.

What if the service member is overseas?

When the service member is overseas and you want to start a divorce, the process may take a little longer because the service member has certain protections while he or she is serving the country overseas. The law gives the service member the opportunity to delay the proceedings because he or she is out of the country and cannot effectively litigate thedivorce in this state. If the servicemen is in this state, on one of the military bases, your case can likely proceed on time.

Am I entitled ...
... to a portion of his/her military retirement?

Yes. Your service member’s military retirement, which often includes a pension and thrift savings plan (similar to a 401k) is community property if the funds were accrued during the marriage. Like all community propertyin Washington State, that does not necessarily mean a 50/50 split. State law allows the asset to be divided as the judge or court believes fair. For example, a stay at home wife might argue she is entitled to 60% of the community portion of the retirement accounts because her long term earning potential is less than the husband’s earning power. Certain special rules apply to dividing a military pension. A pension is an asset that is paid out on retirement in a defined amount, and in the case of the military, is based on years of service and the rank the service member obtained. In the case of a service member, he or she must generally do 20 years of service in the military to qualify for the pension (another term is the pension “vests”). If you, as the spouse, have a certain number of overlapping years of marriage with service member’s time in the military, you have the option upon divorce of receiving direct payments from the military once the retirement account activates.

Can I stay on the service member’s health care after the divorce?

You can in some cases. The military’s health care system is called TRICARE. It is a good health care system and cheap. It is beneficial to stay on the plan if possible. Generally, you need to have been married to the service member for 20 years which overlap with 20 years of service for the service member. Even after divorce, you can stay on TRICARE in this scenario. If you do not have the 20 years, then you will generally have to obtain your own insurance after divorce (there is a short time where you can stay on TRICARE after the divorce but will have to pay premiums). Your children are eligible to stay on TRICARE as long as the service member is eligible.

What about child support?

When a divorce is filed, most of the time one parent will be required to pay the other a monthly fee to help support the children. Other expenses can be sought as well, including daycare and medical costs. Child support is controlled by state law. There are certain guidelines that the military may advise the service member on how much he or she has to pay – but those guidelines can be completely ignored by a judge and court in this state. The Division of Child Support can work with the military to garnish military pay in some circumstances. This means the child support will be paid prior to the service member receiving his or her pay. In calculating income for purposes of child support, one must be careful to include certain benefits. Many service members receive bonus housing pay and food pay. This counts as income for purposes of calculating the proper child support amount. Other bonuses might include hazard pay (when the service member is in a danger zone).

What about a parenting plan?

When you file a divorce, a parenting plan will be required. A parenting plan sets out the dates and times when each parent has the child or children. Washington law and judges determine which parent will have the children, on what dates and times.

Contact an attorney.

Divorces involving military issues are typically more complex than otherdivorces. Contact a Renton Attorney or Beetham Tran Law Firm, PLLC to assist you with your divorce.