Unique Challenges in a Florida Military Divorce
Military service brings a distinct set of circumstances to marriages, and when those marriages end, military divorces can present significant challenges that differ from civilian divorces. Whether it’s jurisdictional complexities, division of military pensions, child custody during deployments, or the handling of military-specific benefits like the Post-9/11 GI Bill, a Florida military divorce requires an in-depth understanding of both state divorce laws and federal military regulations. Navigating this complex intersection can be challenging for service members and their spouses. This blog will cover the unique challenges in a Florida military divorce and how to overcome them with the guidance of a skilled Tampa military divorce attorney.
Jurisdictional Challenges in Military Divorce
One of the first challenges a military couple may face when filing for divorce is determining which court has jurisdiction over their case. Since military families often relocate due to service member assignments, figuring out where to file for divorce can be tricky. Jurisdictional questions are particularly important in military divorces because the location of the divorce can impact property division, child custody, alimony, and child support.
Residency Requirements in Florida Military Divorces
In Florida, to file for divorce, at least one spouse must meet the residency requirement, which is living in the state for at least six months before filing. For military families, this can be confusing, as service members often retain their legal residence in one state while being stationed in another.
Florida law allows service members who are stationed in the state but maintain legal residency elsewhere to file for divorce in Florida. Additionally, a spouse residing in Florida, even if the service member is stationed elsewhere, can file for divorce in the state as long as they meet the residency requirements. A Tampa military divorce attorney can help clarify these residency rules and determine the proper jurisdiction for filing.
Military Retirement and Pension Division
Military retirement benefits are often one of the most valuable assets in a military divorce. Florida follows equitable distribution, meaning that marital assets are divided fairly, though not necessarily equally, between the parties. This rule applies to military pensions as well.
The Uniformed Services Former Spouses’ Protection Act (USFSPA)
Military pensions are governed by the Uniformed Services Former Spouses’ Protection Act (USFSPA), a federal law that allows state courts to divide military retirement pay as marital property. The USFSPA does not dictate how the pension is to be divided; it merely grants states the authority to divide it according to their laws.
In Florida, the division of a military pension is handled similarly to the division of other retirement benefits, using an equitable distribution approach. The court will look at factors such as the length of the marriage and each spouse’s contribution to the marriage, both financially and otherwise. It is important to note that only the portion of the military pension earned during the marriage is subject to division.
A Tampa military divorce attorney can help service members and their spouses understand how Florida courts are likely to divide the military pension and work to ensure a fair outcome.
The 10/10 Rule for Direct Payments
Another important aspect of the USFSPA is the “10/10 rule,” which allows the Defense Finance and Accounting Service (DFAS) to pay a former spouse their portion of the military retirement benefits directly. To qualify for this direct payment, the couple must have been married for at least 10 years, with at least 10 of those years overlapping with the service member’s active duty service.
If the couple does not meet the 10/10 rule, the former spouse may still be entitled to a portion of the military pension, but the payments will come from the service member rather than directly from DFAS. Understanding this distinction is crucial for spouses seeking financial security after divorce.
VA Disability Benefits and Divorce
While military pensions are subject to division under the USFSPA, VA disability benefits are not. VA disability payments are considered personal compensation to the service member for injuries or illnesses related to their service and are not subject to division in a divorce.
However, VA disability benefits can still play a role in financial discussions during a military divorce. For instance, if a service member waives part of their military retirement to receive VA disability benefits (which are tax-free), this can affect the amount of retirement pay available to be divided between the spouses. A Tampa military divorce lawyer can help ensure that any waiver of military retirement pay is accounted for in the division of assets.
Additionally, while VA disability benefits are not divisible, they can be considered when calculating child support or alimony. Courts may factor in a service member’s disability income when determining their ability to pay support, but the specifics of how disability payments are treated in these cases can vary.
Child Custody and Visitation for Military Parents
Child custody and visitation issues can be particularly challenging in military divorces, especially when one or both parents are on active duty. Deployments, relocations, and unpredictable schedules make traditional custody arrangements difficult to maintain.
Florida’s Approach to Military Child Custody
Florida courts, like those in other states, prioritize the best interests of the child when making custody decisions. In military divorces, courts must balance this principle with the unique demands of military service. For example, a service member’s deployment or long-term relocation may require adjustments to custody arrangements, such as granting temporary custody to the non-military parent during periods of deployment.
When crafting custody and visitation agreements, it is essential to include provisions for how custody will be handled during deployments or relocations. Some parents may opt for virtual visitation using technology such as video calls or apps to maintain regular communication between the child and the deployed parent.
A Tampa military divorce lawyer can help military parents draft custody agreements that account for the unpredictability of military life while protecting their parental rights.
The Role of the Servicemembers Civil Relief Act (SCRA)
The Servicemembers Civil Relief Act (SCRA) provides legal protections to service members facing civil litigation, including divorce and custody cases. One of the key protections under the SCRA is the ability to request a stay or delay in proceedings if military service prevents the service member from fully participating in the case.
This protection can be particularly important in child custody cases, where a service member may be deployed or stationed far from the court where the case is being heard. However, the SCRA does not guarantee a stay; the court must still determine whether the service member’s military duties genuinely prevent them from participating in the case.
If you are a military parent concerned about custody and deployment, a Tampa military divorce attorney can help you understand your rights under the SCRA and work to protect your relationship with your child during divorce proceedings.
The Impact of Deployment on Divorce Proceedings
Military deployments can add another layer of complexity to divorce proceedings, particularly if one spouse is stationed overseas or in a remote location. Deployment may delay the divorce process or require special arrangements for communication and participation in court proceedings.
Filing for Divorce While Deployed
Florida law allows military spouses to file for divorce even if one spouse is deployed or stationed out of state. However, the logistics of handling a divorce while deployed can be challenging. Communication may be limited, and the service member may not be able to attend court hearings in person.
Fortunately, technology has made it easier for deployed service members to participate in their divorce proceedings. Many courts allow video conferencing for hearings or depositions, and attorneys can communicate with their clients through secure email or other online platforms. A Tampa military divorce lawyer experienced in handling long-distance divorce cases can help ensure that deployed service members stay informed and involved throughout the process.
Delays Due to Deployment
The SCRA, mentioned earlier, can also come into play if a service member is deployed during divorce proceedings. If the service member is unable to participate in the divorce due to their military duties, they may request a stay of proceedings. The court will evaluate the request and decide whether to grant a delay. This stay can be extended if necessary, but it’s important to note that the service member must show that their duties genuinely prevent them from participating.
While deployment can delay the divorce process, it does not prevent a spouse from moving forward with the filing. A Tampa military divorce attorney can help the non-military spouse understand how deployment may affect the timeline and ensure that the case continues to move forward as efficiently as possible.
Spousal Support (Alimony) in a Military Divorce
Spousal support, or alimony, is another area where military divorces may differ from civilian divorces. In Florida, alimony is determined based on several factors, including the length of the marriage, the financial needs of the spouse seeking support, and the ability of the other spouse to pay.
In a military divorce, certain unique factors may come into play when determining alimony:
- Military Income: Service members receive a range of allowances, including Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS), which can significantly increase their overall income. These allowances are considered when calculating a service member’s ability to pay alimony.
- Frequent Relocations: Military spouses often sacrifice their own career opportunities due to frequent relocations or the demands of military life. This can impact their earning potential, and courts may consider this when awarding alimony.
- Retirement Benefits: In addition to military pensions, a service member’s other retirement accounts or benefits may be factored into alimony calculations, particularly if they provide significant income post-retirement.
A Tampa military divorce attorney can help both service members and their spouses understand how military income and benefits will affect alimony determinations and work to ensure a fair outcome.
Health Care Benefits for Former Spouses
Military health care benefits are another key consideration in military divorces, particularly for spouses who have relied on Tricare for their medical coverage. The continued availability of health care benefits for a former spouse depends on several factors, including the length of the marriage and the service member
’s length of service.
The 20/20/20 Rule
The 20/20/20 rule is a key provision that allows former military spouses to retain their Tricare benefits after divorce. To qualify, the following criteria must be met:
- The couple must have been married for at least 20 years.
- The service member must have completed at least 20 years of military service.
- There must be at least a 20-year overlap between the marriage and the service member’s military service.
If a former spouse meets these requirements, they are entitled to continue receiving full Tricare coverage after the divorce. However, if they do not meet the 20/20/20 rule, they may lose access to military health care benefits, depending on the length of the marriage and the service member’s service record.
A Tampa military divorce lawyer can help former spouses understand their eligibility for Tricare benefits and other military health care resources after a divorce.
Conclusion
Military divorces in Florida present unique challenges that can complicate the process for both service members and their spouses. From jurisdictional questions to the division of military pensions, child custody during deployments, and the impact of federal laws like the SCRA, military divorces require careful legal navigation.
Whether you are a service member or the spouse of a service member, working with an experienced Tampa military divorce attorney is essential to protect your rights and secure a fair outcome. A knowledgeable attorney can help you understand the complexities of military divorce, including how federal and state laws intersect, and guide you through the process to ensure that your interests are protected.
If you are facing a military divorce in Florida, don’t hesitate to seek legal assistance. A Tampa military divorce attorney can provide the support and expertise needed to navigate the unique challenges of military life while securing your future after divorce.
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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If you have inquiries about prenuptial or postnuptial agreements, require assistance with estate planning or wills, or need professional legal counsel regarding family law issues—including high asset divorces—we encourage you to reach out to Damien McKinney. He can be reached at 813-428-3400 or via email at [email protected]. Damien is ready to provide you with a thorough consultation, helping you navigate your legal journey with confidence.
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