Filing for Divorce While Deployed: What Florida Military Spouses Need to Know
Divorce is challenging for any couple, but when one spouse is a military service member, especially when they are deployed, the process can be significantly more complicated. Filing for divorce while deployed introduces unique legal and logistical challenges that civilian couples do not face. The demands of military service, including long deployments, remote assignments, and varying time zones, can make it difficult for service members to actively participate in their divorce proceedings.
For military spouses in Florida, understanding the legal processes involved in filing for divorce while deployed is crucial to ensuring that their rights and interests are protected. This blog will provide an in-depth guide to the essential issues surrounding military divorces during deployment, including the role of the Servicemembers Civil Relief Act (SCRA), jurisdictional challenges, custody and visitation concerns, division of military pensions, and tips for navigating the divorce process while a spouse is away on duty. If you are considering filing for divorce while your spouse is deployed, consulting an experienced Tampa military divorce attorney is essential to navigating this complex situation.
Understanding the Servicemembers Civil Relief Act (SCRA)
One of the most important legal protections for military personnel involved in civil proceedings, including divorce, is the Servicemembers Civil Relief Act (SCRA). The SCRA is a federal law designed to protect active-duty military members from the adverse effects of legal action while they are serving the country, particularly when they are deployed or stationed in a remote location.
Protections Under the SCRA
The SCRA offers several critical protections for military members involved in a divorce, especially when they are deployed:
- Stay of Proceedings: If a service member’s military duties prevent them from participating in the divorce, they can request a stay of proceedings under the SCRA. This stay effectively pauses the divorce case for at least 90 days, ensuring that the service member is not penalized for being unable to respond to court filings or attend hearings. The stay can be extended if the service member’s military duties continue to prevent their participation.
- Protection Against Default Judgments: The SCRA also protects military members from default judgments, which occur when one party in a lawsuit fails to respond or appear in court, allowing the other party to win by default. Under the SCRA, a court must take additional steps before entering a default judgment in a case involving a deployed service member, such as appointing an attorney to represent the service member’s interests.
- Reduced Interest Rates on Debt: While not directly related to divorce, the SCRA caps interest rates on pre-service debts, such as credit cards, mortgages, and loans, at 6% during active-duty service. This financial protection can impact the overall financial landscape during a divorce, especially when it comes to dividing debts.
How the SCRA Affects Divorce Proceedings
For military spouses in Florida who are considering filing for divorce while their spouse is deployed, the SCRA can significantly impact the timeline of the divorce. If the deployed spouse requests a stay, the divorce proceedings may be delayed until they can fully participate. While this can be frustrating for the spouse filing for divorce, the stay ensures that the deployed service member is given a fair opportunity to respond to the case and participate in the legal process.
A Tampa military divorce attorney can help military spouses understand how the SCRA applies to their case and can assist in navigating the potential delays and complications caused by military service.
Jurisdictional Challenges in Filing for Divorce While Deployed
Jurisdiction is one of the first issues that arises when filing for divorce while a spouse is deployed. Determining where to file for divorce can be confusing for military families, as service members often move frequently due to new assignments or deployments. In Florida, there are specific residency requirements that must be met to file for divorce, and these requirements apply to military spouses as well.
Florida’s Residency Requirements for Divorce
To file for divorce in Florida, one spouse must be a legal resident of the state for at least six months before filing. This rule applies to both civilians and military personnel. However, military service members often retain legal residency in one state while being stationed in another. This can lead to confusion about whether the service member or their spouse qualifies as a Florida resident.
For deployed service members, residency is determined by the state in which they claim legal residence, often referred to as their home of record. This state of legal residence is where the service member pays state taxes, votes, and holds a driver’s license. The deployed spouse may file for divorce in Florida if they meet the six-month residency requirement, even if the service member is stationed elsewhere.
A Tampa military divorce attorney can help clarify residency issues and ensure that the divorce is filed in the correct jurisdiction.
Multiple Jurisdictions and Conflicts
In some cases, military families may have multiple states where they could potentially file for divorce. For example, the service member may be stationed in one state, hold legal residency in another, and the spouse may live in yet another state. Each state has its own laws governing divorce, including how property is divided, how child custody is determined, and how support payments are calculated.
It’s essential to work with an attorney who understands the potential conflicts between jurisdictions and can help you determine the best place to file for divorce. A Tampa military divorce lawyer can evaluate your situation and provide guidance on which jurisdiction’s laws will best serve your needs.
Child Custody and Visitation Issues During Deployment
Child custody and visitation can be one of the most contentious aspects of any divorce, and military divorces are no exception. Deployments and frequent relocations add additional complexity to custody arrangements, as military service often requires one parent to be physically absent for extended periods.
Temporary Custody Arrangements During Deployment
Florida law allows for temporary custody modifications during a service member’s deployment. These modifications ensure that the non-military parent can care for the child during the deployment, while also providing a mechanism for the custody arrangement to revert back to its original terms once the service member returns from deployment.
Temporary custody modifications are critical for ensuring the child’s stability and well-being during the deployment, but they are not intended to be permanent changes. Florida courts are generally unwilling to make permanent custody modifications based solely on a parent’s deployment. The focus is on maintaining the child’s relationship with both parents while ensuring the child’s best interests are met.
A Tampa military divorce attorney can help military parents request temporary custody modifications during deployment and ensure that their parental rights are protected throughout the process.
Virtual Visitation During Deployment
To help deployed service members maintain a relationship with their children, Florida courts often encourage virtual visitation. Virtual visitation allows parents to use technology, such as video calls or other communication platforms, to stay in touch with their children during deployment. This can include scheduled video chats, phone calls, and even online messaging.
Virtual visitation helps maintain the bond between the deployed parent and the child, even when physical visitation is not possible. Including virtual visitation in a parenting plan is especially important for military families, as it allows the child to continue having regular contact with the deployed parent.
A Tampa military divorce attorney can help parents draft parenting plans that include provisions for virtual visitation, ensuring that the deployed parent remains involved in their child’s life.
Relocation and Custody Modifications
Deployments and relocations can also affect long-term custody arrangements. If the military parent is assigned to a new duty station that requires them to move far away from the child’s current residence, custody arrangements may need to be modified. Florida law requires that any significant relocation (more than 50 miles) by a parent with primary custody must be approved by the court.
In cases where relocation is necessary, the court will consider how the move will affect the child’s well-being, schooling, and relationship with the non-relocating parent. The relocating parent must demonstrate that the move is in the best interest of the child, not just the convenience of the parent.
A Tampa military divorce attorney can assist with relocation petitions and help parents modify custody arrangements to accommodate new duty assignments while prioritizing the child’s best interests.
Division of Military Benefits in Florida Divorces
Dividing military benefits during a divorce can be a complex process, particularly when one spouse is deployed and unable to actively participate in the discussions. In Florida, military benefits such as pensions, health care, and retirement accounts are considered marital assets and are subject to equitable distribution.
Military Pensions
Military pensions are one of the most valuable assets in a military divorce. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), state courts, including Florida courts, are authorized to divide military pensions as marital property. In Florida, the division of military pensions is handled through equitable distribution, which means that the court will divide the pension in a fair and equitable manner, though not necessarily equally.
The portion of the military pension earned during the marriage is considered marital property and subject to division. However, only the portion of the pension accrued during the marriage will be divided, with the rest remaining the separate property of the service member.
A Tampa military divorce attorney can help ensure that the division of military pensions is handled fairly and in accordance with state and federal law.
The 10/10 Rule
One important aspect of dividing military pensions is the 10/10 rule, which allows the non-military spouse to receive their portion of the military pension directly from the Defense Finance and Accounting Service (DFAS). To qualify for direct payments from DFAS, the couple must have been married for at least 10 years, with 10 years of overlap during which the service member was on active duty.
If the couple does not meet the 10/10 rule, the non-military spouse may still be entitled to a portion of the military pension, but they will need to receive their share directly from the service member, rather than from DFAS.
Survivor Benefit Plan (SBP)
In addition to dividing military pensions, military couples must also consider the Survivor Benefit Plan (SBP). The SBP provides continued income to a former spouse if the service member dies. During divorce proceedings, the service member can elect to provide SBP coverage to their former spouse. If the service member fails to make this election, the former spouse may lose access to these benefits.
A Tampa military divorce attorney can assist in negotiating SBP coverage during divorce proceedings to ensure that the former spouse’s financial future is protected.
VA Disability Benefits
VA disability benefits are treated differently from military pensions in a divorce. Under federal law, VA disability payments are considered personal compensation for injuries or illnesses incurred during military service and are not divisible as marital property. However, VA disability payments can impact the overall financial picture of a divorce, particularly when it comes to calculating spousal support (alimony) and child support.
It’s important to understand how VA disability benefits interact with other military benefits and to work with a Tampa military divorce attorney who can ensure that the financial aspects of the divorce are handled properly.
Financial Considerations During Deployment
Financial issues are often a major concern in military divorces, especially when one spouse is deployed. Managing joint finances, dividing assets, and calculating support payments can be difficult when the service member is not physically present to participate in these discussions.
Division of Assets
In Florida, all marital assets and debts are subject to equitable distribution. This includes not only military benefits but also joint bank accounts, investments, real estate, vehicles, and other property acquired during the marriage.
Because the service member may be deployed during the divorce, it’s important to create a detailed inventory of marital assets and debts early in the process. This will ensure that all assets are accounted for and that the division of property is fair.
Spousal Support (Alimony)
Spousal support, or alimony, may be awarded to one spouse depending on the length of the marriage, the financial needs of the receiving spouse, and the ability of the paying spouse to provide support. In a military divorce, the service member’s income, including basic pay, housing allowances, and other military benefits, will be considered when calculating alimony.
It’s important to work with a Tampa military divorce attorney who can help calculate spousal support in a way that takes the unique aspects of military service into account.
Child Support
Child support is another important financial consideration in a military divorce. The service member’s income, including allowances and bonuses, will be used to calculate child support payments. The Florida child support guidelines will apply, but the court may take the service member’s deployment into account when setting the support amount.
A Tampa military divorce attorney can help ensure that child support is calculated fairly and that both parents meet their financial obligations to their child.
Conclusion
Filing for divorce while a spouse is deployed presents unique challenges, but with the right legal guidance, military spouses in Florida can navigate the process successfully. From understanding the protections of the Servicemembers Civil Relief Act (SCRA) to addressing issues of jurisdiction, child custody, and the division of military benefits, filing for divorce during deployment requires careful planning and knowledge of both state and federal laws.
If you are considering filing for divorce while your spouse is deployed, it’s essential to work with an experienced Tampa military divorce attorney who can help you understand your rights and obligations. A skilled attorney can guide you through the complexities of military divorce and ensure that the process is handled fairly for both parties, protecting your interests and securing a favorable outcome for your future.
At The McKinney Law Group, we take pride in providing exceptional legal support to clients across Florida and North Carolina. Our focus encompasses a wide range of services, including family law, estate planning, and divorce matters. With a deep understanding of the complexities involved in these areas, our dedicated team is committed to delivering personalized solutions that cater to the unique circumstances of each client. Whether you are located in Tampa Bay, Florida, or Asheville, North Carolina, we are here to assist you every step of the way.
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