The examples and perspective in this deal primarily with the United States and do not represent a worldwide view of the subject.(April 2024) |
The examples and perspective in this article may not include all significant viewpoints .(May 2013) |
Military divorce is a specific type of divorce that arises when one or both partners are members of the military. Although typically an uncontested divorce, military divorces are different because they require additional requirements to be fulfilled. Divorces occur less frequently than within the civilian population. [1] They present a special set of challenges that make military divorces more complicated than a typical divorce. For example, The Federal Service Members Civil Relief Act of 2003 requires any person seeking a divorce to state that their spouse is or is not currently a member of the United States armed forces. This is meant to prevent spouses from seeking divorces from service members who would be unable to attend divorce proceedings.
The Federal Service Members Civil Relief Act of 2003 also allows members of the military additional protections should a non-military spouse seek a divorce of a service member including protecting those service members from being held in default if they fail to respond timely to service of divorce. The Service Members' Civil Relief Act also allows service members on active duty to delay divorce proceedings for the duration of active duty and for up to 60 days beyond. [2]
A common challenge presented by military divorce is jurisdiction - where the divorce should be filed if the service member isn't at home. A divorce may be filed at home or where the military member is stationed, both in the United States or abroad.[ citation needed ]
This section needs expansion. You can help by adding to it. (June 2013) |
Calculating the income of a member of the military requires specific knowledge and expertise, as service members are paid in a number of ways, including basic allowances for housing, expenses, and their basic pay. [3] [ clarification needed ]
A servicemember who has served 20 years is entitled to receive a military retirement. Per the Uniformed Services Former Spouses' Protection Act. [4] State courts may but are not required to divide a servicemember's “disposable retired pay” upon dissolution, according to that court's domestic relations laws.
Jurisdiction over a service member is a prerequisite for dividing a military retirement. This jurisdiction is more than simply personal jurisdiction through service of process – it requires either residence within the state not due to military orders, domicile in the state, or the service member's consent. [5]
“Disposable retired pay” is defined as the gross retired pay minus (A) payments back to the United States for prior military retirement overpayments and for recoupments required by law resulting from entitlement to retired pay, (B) court-martial forfeitures, (C) pay waived to receive disability payments from the Veterans Administration (VA), and (D) the Survivor Benefit Plan premium costs for a spouse or former spouse paid pursuant to court order. [6]
"While the Uniformed Services Former Spouses Protection Act does not specify a minimum duration of marriage in order to divide retirement, former spouses who wish to receive their share of the retirement directly from the Defense Finance and Accounting Service must have at least 10 years of marriage overlapping the military service. [7] [8] [9] [10]
If retirement pay is determined to be at least partially a marital asset, DoD Regulation 7000.14-R Para 290601(C) (backed up by 10 USC 1447-1455) requires that division orders specify a dollar amount of award or a percentage of retirement pay with no offsets or set asides. The only way to specify the correct percentage when there have been promotions after the divorce is via the DFAS Hypothetical Method or the Dual Coverture Value (DCV) Method [11] (which is also called the "Area Method" (AM) because of the way it shows on an area diagram). The first involves a sequential process and the second involves a formula based on your circumstance, and handles many more circumstances of life, and correctly handles Reserve military members. All three methods give the same result, and 6 years after they were published, the promotion enhancement set-aside was embodied in Federal law with NDAA 2017 Sec 641. [12] More than 20 attorney guides, whitepapers, and spreadsheet calculation aids are available from 10+ years of research in this area by a PhD analyst. [13]
If a military member is promoted after divorce, the promotion enhancement due to retirement would be a non-marital asset as recommended by a Department of Defense report to Congress about the USFSPA law. Courts have struggled to understand how to implement this. The result is that many times the military member's promotion enhancements, due to sole effort after the divorce, are divided to the ex-spouse. The Area Method is a straightforward method to equitably divide retirement pay in this situation for an Active Duty or Reserve retirement. [14]
For Reserve military officers, a retention benefit program was implemented providing possible early retirement if certain types of duty is done after January 28, 2008. This benefit does not cause the amount of retirement checks to increase, but it can cause an increase to the number of retirement checks to be paid prior to age 60. If a marriage was entirely prior to January 28, 2008, all of the extra checks should equitably belong to the military member, and a division order needs to state this. If a marriage was entirely after January 28, 2008, all of the extra checks should be divided in the same manner as the payments at age 60 and beyond. If a marriage spans that date, the extra checks must be divided with a different percentage. See specific details on a web page about unique Reserve military issues. [15]
A Supreme Court decision prohibits states from dividing VA disability payments. [16] However, this does not preclude a state from ordering indemnity payments from a retiree who waives retired pay to receive VA disability after a decree of dissolution has issued. In the State of Michigan, an Appellate court has ruled [17] that any offset or indemnity is in violation of the Federal intent of preserving value for the military member, and hence offsets or indemnities are not allowed. Quoting three paragraphs from the King decision,
"The substantive question in this case is whether the Uniformed Services Former Spouses' Protection Act, 10 USC 1401 et seq., and the supremacy clause of the federal constitution, US Const, art VI, [**564] prevent a state court from treating a military disability pension as a distributable marital asset."
“The court concluded that the trial court was precluded from considering the ex-husband's military disability pension as a marital asset and had improperly awarded the ex-wife one-half the value of the ex-husband's military disability pension. The court agreed with the ex-husband that his military pension could not be considered "directly or indirectly" in the distribution of the marital property.”
"[***7] [**565] In McCarty, the Supreme Court clearly held [*500] that a retirement pension could not be distributed as a marital asset. In a footnote, the Court noted that this prohibition is not to be circumvented by an "off-setting award". 453 U.S. 228-229, fn 22. Although McCarty has been overruled by 10 USC 1408, its rationale applies here since 10 USC 1408 does not allow distribution of a disability pension. Thus, we agree with defendant that his military pension may not be considered "directly or indirectly" in the distribution of the marital property. Cf. Kendall v Kendall, 106 Mich App 240, 243-244; 307 NW2d 457 (1981)."
Servicemembers have different rules and regulations with regards to taxes that make child support a more complicated process. Because some military income and deployment benefits are not taxable, a court must decide to levy obligations based on pre-tax income or post-tax income.
The Servicemembers Civil Relief Act protects military servicemembers from being sued while on duty and up to one year following service. [18] [19] [20] This may present a challenge for the plaintiff when suing a member of the military for child support or other financial support. [21]
In the United States, Social Security is the commonly used term for the federal Old-Age, Survivors, and Disability Insurance (OASDI) program and is administered by the Social Security Administration (SSA). The Social Security Act was passed in 1935, and the existing version of the Act, as amended, encompasses several social welfare and social insurance programs.
New York divorce law changed on August 15, 2010, when Governor David Paterson signed no-fault divorce into law in New York state. Until 2010, New York recognized divorces only upon fault-based criteria or upon separation. The State Senate approved the No-Fault Divorce bill on June 30, and the State Assembly passed the bill on July 1.
The United States has eight federal uniformed services that commission officers as defined by Title 10 and subsequently structured and organized by Titles 10, 14, 32, 33, and 42 of the U.S. Code.
A prenuptial agreement, antenuptial agreement, or premarital agreement, is a written contract entered into by a couple before marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony with agreed-upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse's right to claim an elective share of the estate of the deceased spouse.
According to the United States Government Accountability Office (GAO), there are 1,138 statutory provisions in which marital status is a factor in determining benefits, rights, and privileges. These rights were a key issue in the debate over federal recognition of same-sex marriage. Under the 1996 Defense of Marriage Act (DOMA), the federal government was prohibited from recognizing same-sex couples who were lawfully married under the laws of their state. The conflict between this definition and the Due Process Clause of the Fifth Amendment to the Constitution led the U.S. Supreme Court to rule DOMA unconstitutional on June 26, 2013, in the case of United States v. Windsor. DOMA was finally repealed and replaced by the Respect for Marriage Act on December 13, 2022, which retains the same statutory provisions as DOMA and extends them to interracial and same-sex married couples.
An individual retirement account (IRA) in the United States is a form of pension provided by many financial institutions that provides tax advantages for retirement savings. It is a trust that holds investment assets purchased with a taxpayer's earned income for the taxpayer's eventual benefit in old age. An individual retirement account is a type of individual retirement arrangement as described in IRS Publication 590, Individual Retirement Arrangements (IRAs). Other arrangements include individual retirement annuities and employer-established benefit trusts.
A military discharge is given when a member of the armed forces is released from their obligation to serve. Each country's military has different types of discharge. They are generally based on whether the persons completed their training and then fully and satisfactorily completed their term of service. Other types of discharge are based on factors such as the quality of their service, whether their service had to be ended prematurely due to humanitarian or medical reasons, whether they had been found to have drug or alcohol dependency issues and whether they were complying with treatment and counseling, and whether they had demerits or punishments for infractions or were convicted of any crimes. These factors affect whether they will be asked or allowed to re-enlist and whether they qualify for benefits after their discharge.
The Employee Retirement Income Security Act of 1974 (ERISA) is a U.S. federal tax and labor law that establishes minimum standards for pension plans in private industry. It contains rules on the federal income tax effects of transactions associated with employee benefit plans. ERISA was enacted to protect the interests of employee benefit plan participants and their beneficiaries by:
The U.S. Railroad Retirement Board (RRB) is an independent agency in the executive branch of the United States government created in 1935 to administer a social insurance program providing retirement benefits to the country's railroad workers.
A qualified domestic relations order, is a judicial order in the United States, entered as part of a property division in a divorce or legal separation that splits a retirement plan or pension plan by recognizing joint marital ownership interests in the plan, specifically the former spouse's interest in that spouse's share of the asset. A QDRO's recognition of spousal ownership interest in a plan participant's (employee's) pension plan awards a portion of the plan participant's benefit to an alternate payee. An alternate payee must be a spouse, former spouse, child or other dependent of the plan participant. A QDRO may also be entered for spousal support or child support.
The Defense Commissary Agency (DeCA), headquartered at Fort Gregg-Adams, Virginia, is an agency of the United States Department of Defense (DoD) that operates nearly 240 commissaries worldwide. American military commissaries sell groceries and household goods to active-duty, Guard, Reserve, and retired members of all eight uniformed services of the United States and eligible members of their families at cost plus surcharge, saving authorized patrons thousands of dollars compared to civilian supermarkets.
A VA loan is a mortgage loan in the United States guaranteed by the United States Department of Veterans Affairs (VA). The program is for American veterans, military members currently serving in the U.S. military, reservists and select surviving spouses and can be used to purchase single-family homes, condominiums, multi-unit properties, manufactured homes and new construction. The VA does not originate loans, but sets the rules for who may qualify, issues minimum guidelines and requirements under which mortgages may be offered and financially guarantees loans that qualify under the program.
The Veterans Benefits Administration (VBA) is an agency of the U.S. Department of Veterans Affairs. It is responsible for administering the department's programs that provide financial and other forms of assistance to veterans, their dependents, and survivors. Major benefits include veterans' compensation, veterans' pension, survivors' benefits, rehabilitation and employment assistance, education assistance, home loan guaranties, and life insurance coverage.
The Servicemembers Civil Relief Act is a United States federal law that protects soldiers, sailors, airmen, marines, coast guardsmen, and commissioned officers in the Public Health Service and National Oceanic and Atmospheric Administration from being sued while in active military service of their country and for up to a year after active duty, as well as U.S. citizens serving with allied military forces for the duration of a military conflict involving the United States.
Common-law relationships in Manitoba are government-sanctioned relationships available to both same-sex and different-sex unmarried couples in the Canadian province of Manitoba. While not as extensive as the rights and benefits of marriage, these relationships provide some important benefits to unmarried couples. Registration is voluntary; many of the laws apply automatically to any couple in the province after living together for several years.
Family law in Canada concerns the body of Canadian law dealing with domestic partnerships, marriage, and divorce.
Military dependents are the spouse(s), children, and possibly other familial relationship categories of a sponsoring military member for purposes of pay as well as special benefits, privileges and rights. This generic category is enumerated in great detail for U.S. military members.
In July 2008 the Post-9/11 GI Bill was signed into law, creating a new robust education benefits program rivaling the WWII Era GI Bill of Rights. The new Post 9/11 GI Bill, which went into effect on August 1, 2009, provides education benefits for service members who served on active duty for 90 or more days since September 10, 2001. These benefits are tiered based on the number of days served on active duty, creating a benefit package that gives current and previously activated National Guard and Reserve members the same benefits as active duty servicemembers.
The topic of same-sex unions and military service concerns the government treatment or recognition of same-sex unions who may consist of at least one servicemember of a nation's military.
The Uniformed Services Former Spouses' Protection Act is a U.S. federal law enacted on September 8, 1982 to address issues that arise when a member of the military divorces, and primarily concerns jointly-earned marital property consisting of benefits earned during marriage and while one of the spouses is a military service member. The divisibility of U.S. military retirement payments in divorce proceedings has had a turbulent legislative and legal history, and the USFSPA has not closely tracked its civilian cousin enacted in 1975, the Employee Retirement Income Security Act (ERISA), although they are similar in some respects with regard to public policy aims.
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