Military Divorce Laws in Florida
Jurisdiction for Military Divorces
The first unique hurdle members of the military and their spouses encounter when wanting to file for divorce is deciding where to file. Many states provide exceptions for residency requirements for active duty service personnel who prefer to file in the state he/she is currently stationed. However, members of our military and their spouses are not limited to filing only in the state in which they are based. You can also file where you have permanent residence, where you own property, or where you last lived as Husband and Wife. Usually the state in which you have the most ties to the best place to file but you may want to look up the different divorce laws in each state and make the determination according to the laws that best accommodate your needs and desires.
Division of Military Retirement Plans
There are many unique circumstances specific to the division of a military retirement.
- Entitlement of Spouse to Share Retirement
In order for a military spouse to be entitled to receive retirement pay directly from the military you must have been married to a member of the military for a minimum of ten (10) years which overlaps the military member’s time of service no less than ten 10 years. For example, if you are married 15 years but your military spouse has only been a member of the military for 5 out of those 15 years, then you would not be entitled to receive your portion of your military spouse’s retirement directly from the military. However, that does not mean you are still not entitled to receive your portion of your military spouse’s retirement. State statutes govern if you are entitled to receive a portion of your military spouse’s retirement. If you do not meet the 10 years of marriage overlapping 10 years of service requirement, then your military spouse would be required to pay you your portion of the military retirement pay directly and/or as set up by the Court. This is a big misconception by many lawyers and civilian spouses. Just because the court cannot directly order a division of benefits does not mean the court cannot lay out direct payment obligations for either spouse.
- How to Calculate Spouse’s Share of Military Retirement
The length of the marriage is often times the leading factor that determines how much a military spouse is entitled to receive from the military member’s retirement. For most branches of the military, there are three common calculations used:
(1) Net Present Value –used when someone wants a buyout at time of divorce, and,
(2) Deferred Distribution – a share amount is calculated at time of the divorce but the military spouse is not entitled to receive his/her funds until the service member is entitled to receive his/her share at time of retirement; and,
(3) Reserved Jurisdiction– the Court reserves the right to determine each parties’ share of the retirement as the time of the service member’s retirement.
There is a fourth way to formulate how much the military spouse is entitled to of the service member’s retirement. It is called the Point System and is used most commonly used for the Reserves branch of our military. The Point System counts the amount of points accumulated in the marriage rather than months, and the amount of points differ based on the type of service being provided by the active military member.
- Thrift Savings Plan
Thrift Savings Plan (hereinafter referred to as “TSP”) is an investment plan similar to a 401(K) plan, however, TSP is a Federal Government-sponsored retirement savings and investment plan. The money earned/saved in a TSP depends on independent contribution to the plan and the investment money that was earned as a result of the independent contribution. Just like 401(K) plans, TSP have contribution limits. For 2012, the contribution limit was $17,000.00. Usually the amount contributed is selected in percentages of the military member’s pay, whether it be basic pay or incentive pay. The percentages elected to be taken will be taken each pay period, before taxes, up and until the maximum contribution amount for that year is met.
There are two important considerations for a TSP when going through a divorce as a member of our military or as a military spouse. First, you will want to ensure that you equitably divide the Thrift Savings Plan in addition to the basic retirement pay. Second, when calculating child support and/or alimony, you will want to ensure that the money set aside for the TSP is considered as income for the military member’s pay.
- Survivor Benefit Program
Survivor Benefit Program (hereinafter referred to as “SBP”) is a program that allows the spouse of a military member to continue to receive a monthly payment (annuity) to help make up for the loss of the military member’s retirement income upon death. This program requires a monthly premium and is elected during the course of military service by the military member. Once SBP is elected, there is usually not a way to terminate the benefit. However, many branches of our military allow the military member to change the beneficiary of the SBP. So it is important to specify in the Marital Settlement Agreement whether the military member may or may not change the beneficiary of his/her SBP. This is often times overlooked by litigants and attorneys.
- How to Accomplish the Division of Military Retirement
It is important that you find an attorney who is knowledgeable in the area of military divorces and who can properly draft your agreement so that the Defense Finance and Accounting Service can properly divide the retirement. If you do not retain the services of an attorney who is knowledgeable in the area of military divorces then you are left having to hire the services of an outside legal source to properly draft the military retirement division section of your Marital Settlement Agreement.
Calculation of Support: Off-Duty Pay vs. Active-Duty Pay
Members of the military receive differential pay when they are deployed which is greater for the period of their deployment then their basic pay. If you or your spouse regularly deploys, it will be important to use his/her yearly average pay when calculating child support and/or alimony. If it was a onetime deployment and the military member does not have the option of deploying again, then the differential pay will likely not be used to calculate child support and alimony. Also, ensure that you keep in mind the differential pay when calculating any back alimony and child support.
Health Benefits for Your Spouse and Children
So long as a parent is a member of the military that parent and the child(ren) will be provided Health, Dental and Ocular insurance by the military at no extra cost to the military member. Usually, there are no co-pays needed. Therefore, if you are splitting up, it is best if the military member provides the health insurance for the child(ren).
The military does offer lifelong health benefits for its service members who dedicate at least 20 years of their life to service. There are two different types of health benefits for military spouses:
(1) Full commissary, exchange and health care benefits- is available where the service member served 20 years of creditable service, the marriage lasted 20 years AND that the period of the marriage overlapped the period of service by at least 20 years (a.k.a. 20/20/20 former spouse). Benefits include TRICARE and inpatient and outpatient care at a military treatment facility; and,
(2) Transitional Health Coverage- is available where the service member served 20 years of creditable service, the marriage lasted 20 years, BUT the period of the marriage overlapping the period of service was only 15 -19 years (a.k.a. 20/20/15). In this circumstance, the military spouse is entitled to full military medical benefits (so long as they do not remarry during or enroll in an employer-sponsored health insurance plan) only for a transitional period and thereafter the spouse may purchase a DOD-negotiated conversion health policy.
If you do not meet the requirements of either the Transitional health Coverage or the Full Coverage then military health coverage terminates upon divorce. You will be given the option of purchasing a DOD Continued Health Care Benefit Program. This health program requires you to pay a premium to participate and it provides temporary health care coverage for up to 36 months so long as you enroll within 60 days of losing full military health care benefits.
Relocation- Planning for PCS
For most members of the military PCS is inevitable after 4-7 years at one base. Often times you are not given the luxury of picking where you want to go which can cause havoc to an existing time-sharing schedule or divorce proceedings. Best case scenario you are able to work out a long distance time-sharing schedule with the other parent as soon as you receive your Orders. If not, it is important to file for relocation if you intend on taking the child(ren) with you when you PCS or modification if you just need a nonlocal time-sharing schedule and do not intend on taking the child(ren) with you when you PCS. Florida statutes provide that a Court shall hear your temporary relocation requests within 30 days of filing and accommodate a final hearing on the relocation within 90 days of filing. So it is possible to get a court’s determination prior to you having to leave on your Orders.
The burden of proof to be able to relocate with your child(ren) in the event you receive Orders for PCS is the same burden of proof if you were trying to relocate without military Orders. The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the non-relocating parent to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.
A standard non-local time-sharing schedule often times used in Florida Courts is as follows:
Parent with the child(ren)– all times not specified for the non-local parent as the child(ren) will be residing the majority of time with this parent.
Non-local parent- alternating Thanksgiving break, alternating Christmas break, every Spring break, 6-8 weeks during the summer, option at local time-sharing.
In order to partake in the standard non-local time-sharing schedule, the non-local parent must be able to accommodate the child(ren) during his/her prescribed time period which can often be hard for members of the military who do not receive Basic Housing Allotment (hereinafter referred to as “BHA”). So if you are a member of the military or the other parents is and he/she does not have BHA, then you will want to try and formulate a schedule that will allow that person to continue a meaningful relationship with the children in a manner which is feasible to accommodate the child(ren).
Special Alimony Considerations
Military spouses are often times given special alimony considerations if they have given up a career and/or life choice to follow his/her military spouse around to comply with the Orders for PCS. In Florida, there is a rebuttable presumption against alimony for a marriage less than 7 years. That presumption is rebuttable with special circumstances, such as giving up a career and/or life choice to further a spouse’s career. Therefore, even if you have been married less than 7 years, if you have given up a career and/or life choice to further your spouse’s career through his/her PCS Orders, then you may be entitled to alimony.
New Relationships – Infidelity
According to Wikipedia, infidelity is a violation of a couple’s assumed or stated contract regarding emotional and/or sexual exclusivity. For civilians, there is no penalties for infidelity in Florida unless there was a waste of marital assets as a result of the infidelity. However, for most members of our military, it is a violation of military laws for them to start a new relationship while still legally married regardless of where they live. This section does not apply to Military spouses unless that spouse is also a member of the military.
This rule is strictly enforced for some military members while lax for others depending on their branch of military, supervisors and/or base. You will want to check with your higher ups to determine how you should proceed, if at all, when considering a new relationship prior to the finalization of your divorce. While this rule may not seem fair, when you became a member of our military you agreed to hold yourself to the highest standards and morals. Infidelity, regardless of separation, while legally married is viewed by most of the military standards as immoral and unethical.
Delaying Divorce for Training and/or Deployment
Everyone filing for divorce is required to file a Military Affidavit declaring whether one or both spouses are members of the military and if so, if they are on active duty. Soldier’s and Sailors’ Civil Relief Act of 1940 (Title 50 U.S.C. Appx. SS 520) governs this disclosure. The reason for this declaration is to ensure military members are given deference when it comes to discovery deadlines, telephonic appearances, and accommodations for other court requirements. .Soldier’s and Sailors’ Civil Relief Act of 1940 also provides you with a means of putting your divorce on hold if you are in training or on active duty. It is not necessary, however, for you to put your divorce on hold just because you are going through training or on active duty.
Most lawyers are equipped to accommodate the gathering of discovery through electronic means such as email. However, it is very important that the military member stays in touch with his/her attorney to keep them apprised of the Orders they receive for PCS and the time frame needed for accommodations.
Family Support Under Military Code
There are policies defined by the military establishing mandatory duties to support family, even when there is no court order. The policies are mandatory and the failure to abide by the policies are punishable under the military code of justice. An except from that policy is as follows:
a. A soldier is required to provide financial support to family members. This obligation is frequently complicated when the soldier is geographically separated from the family. In the majority of these situations, the soldier and the family can manage the financial support without command involvement. These arrangements may include joint checking accounts or voluntary allotments to the family as appropriate.
b. The commander must become involved when the parties are unable to agree on a proper method to provide financial support to the family members. This obligation does not arise until a family member or an authorized representative of the family member complains to the command that the soldier is failing to provide proper support.
c. Soldiers are expected to keep reasonable contact with family members, as well as with others who have a legitimate need to know their location, to minimize the total number of inquiries to their commanders and other Army officials on financial support, child custody and visitation, paternity, and related matters. Within the parameters of the law, soldiers will, whenever possible, resolve all such matters so that these personal problems do not become official matters of concern for their commanders or other Army officials. When this is not possible, soldiers should promptly seek legal advice from an attorney providing legal assistance or from a civilian lawyer in private practice.
Florida Statutes on Concurrent Custody & Temporary Orders
There are Florida statutes that allow designation of an immediate family member as having “concurrent custody” should the service member be deployed. This allows that family member to make decisions in the parent’s absence. There is also a statute that requires temporary custody orders put in to effect during a deployment to be voided upon the service member’s return.
While your military situation makes you unique, you are still left to deal with our judicial system which varies from state to state. The information provided in this article is through the eyes of the Florida judicial system. Start your divorce process by carefully determining where to file your divorce. Then handle the other issues as they arise. An informed decision is the best decision and now you are equipped to make decisions unique to your military status.