Divorcing spouses who serve in the military, or who are married to service members, face different issues compared to civilians. While divorce is complicated enough, these considerations add a new level of difficulty many attorneys are not prepared to handle. If one of the parties in your divorce is a servicemember, you need a lawyer with experience handling military divorce cases.
Count on Matteucci Family Law. Attorney Bob Matteucci takes a personalized approach with each one of his clients, and he is prepared to work on your military divorce.
Unique Challenges for Servicemembers and Their Spouses in a Military Divorce
Regardless of which side you’re on, or which spouse serves in the military, there are matters in your divorce that civilians don’t have to deal with. The following are only a few of the unique challenges that may be present in your military divorce or family law case:
- Legal protections for spouses on active duty, are disabled or retired
- Rights of former spouses of servicemembers, including rights to retirement benefits
- Child custody concerns when one parent is stationed or relocated out of the state or country
Active Duty and How It May Affect Your Case
Serving someone with divorce paperwork is always a challenge. But if you’re deployed, in combat, or otherwise on active duty, it can be impossible. However, it would not be fair for one spouse to file a lawsuit while the other has no way to get back home to respond to it in court. That’s one reason the Servicemembers Civil Relief Act (SCRA) exists.
In a civilian divorce or other family law matter, papers are filed in court and served on the defendant. That person then has a certain amount of time to answer or the plaintiff will get a default judgment. Members of the military who are serving on active duty, however, enjoy certain legal rights and protections under the SCRA. For one, the SCRA “stays” (suspends) the proceedings temporarily. Additionally, the SCRA prevents defaults that would otherwise result from the defendant failing to answer or appear in court.
Whether you are the plaintiff or defendant, your divorce attorney needs to understand the requirements of the SCRA. Failing to do so could result in the servicemember’s due process rights being violated, which could invalidate the proceedings or any court orders issued. On the other hand, if you are the servicemember spouse, your attorney should know both the protections and limitations of the SCRA.
Rights of Former Spouses of Military Members
The Uniformed Services Former Spouse Protection Act (USFSPA) is a federal law that extends certain benefits to former spouses of military members. They include:
- State courts are permitted to divide disposable military retirement pay between the servicemember and the former spouse
- Former spouses may be able to receive a portion of the military member’s retirement pay directly from the government
- Special benefits may be available to spousal or child abuse victims
- Former spouses may be able to receive health care at military treatment centers
Knowing these rights can help you claim a portion of the servicemember’s retirement benefits. But there are limitations to this, and your attorney should be familiar with them. As an example, the spouse has to be married for at least 10 years to the servicemember before a former spouse can receive payments directly from the military. If the marriage is shorter than 10 years and the retirement pay is divided, the payments would be paid directly from the service member to the former spouse. During that time, the servicemember must also have served at least 10 creditable years. This is known as the 10/10 rule.
The non-servicemember spouse may be able to collect certain benefits if the servicemember dies. One of these is called the Survivor Benefit Plan, or SBP. The SBP is a valuable tool that allows a former spouse to continue receiving income from the military spouse. Also, a court can order a servicemember spouse to provide SBP coverage to a non-servicemember spouse.
Again, however, there are complex technical requirements that have to be followed for orders like this to be effective. As with other aspects of the military divorce process, attention to detail and understanding the different rules are essential. Discuss these and other benefits with your military divorce attorney.
Challenges of Child Custody in Military Divorce
All New Mexico child custody decisions are based on the best interests of the child. In furtherance of that, courts generally work to ensure the child has a positive relationship with both parents. But how is this accomplished when one or both parents are serving in the military?
Deployment, combat, and active duty service can make it difficult for a divorced servicemember parent to spend time with their child. Conversely, the non-servicemember parent may worry that if custody is awarded to the military member, deployment will make visitation difficult. Weighing the child’s best interests with the duty of service is no simple task.
However, a skilled military divorce attorney can devise creative solutions to meet these and other custody challenges. One example may be a parenting agreement whereby missed visitation time due to deployment or active duty service will be made up when the servicemember returns. Custody orders should also include provisions concerning contact between the deployed parent and child, along with a process for notifying the non-service member parent of imminent deployment.
Relocation out of state, for instance to a different military base, can also complicate custody for either parent. A relocating servicemember parent cannot simply up and leave with the child. At the same time, the non-servicemember parent may stubbornly refuse to condone any relocation at all. Your attorney will have to consider time-sharing arrangements and other solutions for balancing the desires of the parents with the best interests of the child.
Contact a New Mexico Military Divorce Attorney Today
The above issues only scratch the surface of how complex a military divorce can be. If you are the service member spouse, or you’re married to one, taking a proactive approach to your divorce is essential. It begins with retaining the experienced New Mexico military divorce counsel of Bob Matteucci. Contact Matteucci Family Law today to find out more.
Matteucci Family Law Firm helps families with military divorce matters all across New Mexico including Albuquerque, Santa Fe, Los Lunas, and Rio Rancho.