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Part 2 – How does Military Divorce Differ From Standard Divorce?

Military divorces are complex and have many issues that differ from civilian divorce. In Part 1 of this series we looked at the state law that governs a military divorce and the timetables involved. Here in Part 2 we will lay out some of the substantive issues involved that are unique to military divorce.

What benefits is a spouse entitled to in a military divorce?

Child support. The calculations for child support are different if one parent is a service member, whether on active duty, retired, or serving in the reserves.  There are specific charts that are used by the courts when one parent is a military member, rather than the general child support calculators you might see on web sites devoted to general divorce laws.

Pension rights. Under the Uniformed Services Former Spouse’s Protection Act (USFSPA), a state court will not automatically award any specific percentage of the spouse’s pension.  However, courts can and do award money based on the value of the pension, no matter the length of the marriage.  However, the USFSPA provides that a spouse cannot get a direct payment from the U.S. government unless specific criteria about the length of service and the length of the marriage are met.

Many attorneys do not understand this distinction and will tell you that you cannot get any money based on the pension.  This is not true — it all depends on the overall property division and on what the judge thinks is equitable.

Health care. Benefits under TRICARE often end with divorce, unless the marriage was long and the military spouse also served for a long time. However, the benefits continue for the children regardless of the length of the marriage.  Just like pension rights, the military will not directly provide you with health care, but that does not mean that you cannot ask the judge to take into account your need for health care coverage and to provide for it in your divorce.

Disability pay. This cannot be divided between the spouses by law, but it can be taken into account in setting the property division in the divorce, child support and spousal support.  (In other words, you cannot get this money directly, but you might be able to get it indirectly.)

Survivor benefit plan (life insurance). This benefit can be paid to a former spouse, but just because you were the beneficiary during the marriage doesn’t mean that you’ll get it after you’re divorced.  The divorce nullifies the original determination of ‘spouse’ at the time of the divorce is finalized, but the former spouse can still be named as the beneficiary, either by agreement or by court order.

If you are considering divorce and you or your spouse is a veteran of active duty, retired or reserves, it is important that you talk to a lawyer before you take action. You need an attorney with years of experience representing military spouses, ideally before the divorce is filed, but in any case as soon as possible.

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Randy S. Margulis
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As a Buffalo divorce lawyer for 25 years, I have devoted myself to solving the problems that affect families throughout the Buffalo metropolitan area and Western New York. As a family law attorney, I make it my goal to create a partnership of trust with my clients. People put their trust in me to handle cases that can potentially have a long-lasting impact on not only their lives, but the lives of their family as well.

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