Military Divorce Attorneys in Melbourne, FL
Any divorce is stressful, confusing, and emotionally draining, but military divorce in particular creates unique and complex issues. There are many things to consider in a military divorce, such as military pensions, child custody, and spousal support due to the civilian spouse’s inability to gain employment because of frequent relocation. There are also laws that protect service members, so it is important to work with an experienced military divorce attorney in Melbourne, FL. At the Figueroa Law Group, P.A., we are confident that we can help you resolve your case effectively.
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Proceedings, Relocation, Pensions, and Support
Federal and state laws have been enacted to protect the active-duty military members. Divorce proceedings may be postponed during a servicemember’s deployment if the court determines that the member’s active service materially affects the member’s ability to defend the action. If the court does not make this finding the court may proceed with the case. If the court does not proceed this may be frustrating for one or both parties involved, but these laws ensure the divorce is not finalized without the military member’s knowledge and participation.
Additionally, active-duty military members must be served with the lawsuit. Sometimes the service member will accept service. If the service member does not accept service then efforts are made to provide papers to the member through the member’s chain of command although the member is not required to accept service. If on base, military authorities will generally make the servicemember available for service of process and a sheriff or a private process server can accomplish service. It is best if the servicemember is out of state to coordinate service with a process server local to the base where the member is located.
Due to frequent relocation, the parties may not know where to file. It’s common for military couples to get married in one state, own property in another, and to have moved to several other states during their marriage. Sometimes servicemembers retain Florida residency even if they are living out of state due to military orders. Subject matter jurisdiction exists under section 47.081 of the Florida Statutes even if the member (or spouse) is not a resident but is in Florida on military orders. There must be concurrent intent to be a permanent Florida resident as an element of the residency test for military service. A Florida Driver’s license can be used for residency even if the member is living out of state due to military orders. The attorney can look for evidence of home of record or residency for tax purposes. Residence and domicile must proximately precede the commencement of the action and proximity is to be determined in light of the totality of circumstances. In the event of a dispute as to residence or domicile, each party should file affidavits and a court may require an evidentiary hearing. The court can have subject matter jurisdiction even if a member (or spouse) is not a resident but is in Florida on military orders. It is important to know that personal service in the State of Florida is not enough to fulfill the jurisdictional requirements of the USFSPA. The requirements for personal service must be met. The servicemember can consent to the Florida court’s jurisdiction by taking some affirmative action in the legal proceeding. To prove residency the attorney will look for a Florida Driver’s license, the member’s home of record or residency for tax purposes. There is personal jurisdiction if the service member is a Florida resident and/or maintained a matrimonial domicile at the time of commencement of the action. Also considered in addition to the Florida driver’s license is a Florida voter’s registration card and whether the servicemember owns real estate in Florida.
The Melbourne, FL military divorce attorneys at the Figueroa Law Group, P.A. can determine in which state is the best to file. Since state divorce laws vary, there are many factors to consider, including the division of assets, military pensions, child support and custody, and spousal support. These factors are weighed and considered differently in a military divorce than in a non-military divorce.
Where to File Your Divorce?
In a military divorce, the judge’s authority over you and your spouse is essential for the divorce to be legal. In determining jurisdiction between a civilian and military member is that the former is determined by where you last resided as husband and wife, while the latter may be the place where the person maintains legal residency and domicile.
If you are unsure where to file or how to proceed with a servicemember divorce, consult a military divorce attorney from Figueroa Law Group, P.A. to obtain legal advice.
Division of Property
A military divorce, like a civilian divorce, follows most property division criteria, such as determining which basis the court uses to divide property – equitable distribution. Equitable distribution is the process of dividing the assets and debts of the parties per section 61.075(1) and (3) of the Florida Statutes.
If the court will examine your existing circumstances, including but not limited to:
- The contribution to the marriage by each spouse including contributions to the care and education of the children and services as homemaker
- The economic circumstances of the parties
- The duration of the marriage
- Any interruption of personal careers or educational opportunities of either party
- The contribution of one spouse to the personal career or educational opportunity of the other spouse
- The desirability of retaining any asset, including an interest in a business, corporation, or professional practice
- The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of or the incurring o liabilities to, both the marital assets and the non-marital asset of the parties
- The desirability of retaining the home as a residence for any dependent child of the marriage or any other party when it would be equitable to do so
- The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition
- Any other factors necessary to do equity and justice between the parties
- separate property.
What Happens to Your Retirement or Military Pension and Other Benefits?
Every military retirement benefit or pension is considered to be a marital property which means that it is subjected to a division of property. The Florida state court must have jurisdiction over the servicemember by the member’s residence in the territorial jurisdiction of the court (other than because of military assignment), the member’s domicile in the territorial jurisdiction of the court or the member’s consent to the jurisdiction of the court. If this is not followed the member could administratively challenge the distribution at DFAS who may decline an order and refuse to distribute the pension. The military retirement pay can be divided by a fixed dollar amount or by a percentage. It is important to remember that only “disposable retired pay” less deductions can be divided after a divorce. The division of the retired pay is based only on the marital portion.
Per section 61.076(2) of the Florida Statutes if the parties were married for at least 10 years, during which at least one of the parties who was a member of the federal uniformed services performed at least 10 years of creditable service, and if the division of marital property includes a division of uniformed services retired or retainer pay and the 10/10 rule is satisfied then an order properly prepared with the required information can be effectuated for the military to pay the retirement benefits monthly to the divorced spouse directly. The parties must have been married for at least 10 years, with the service member having at least 10 overlapping years of military service. Even if the marriage did not meet the 10/10 rule, a judge could still divide the military retirement; the only difference is that it is paid by your spouse when he or she receives it rather than the DFAS or the military.
An important consideration is the Survivor Benefit Plan Coverage that provides continuing payments to the former spouse for the duration of the former spouse’s life and payments do not stop upon the death of the member. The spouse should be designated as the beneficiary during the proceedings and before retirement. Upon divorce, the spouse has one year of the court order requiring former spouse coverage to make a deemed election for former spouse Survivor Benefit Plan coverage.
In addition to that, former spouses are granted continued access to other benefits (e.g., health care benefits, commissary, and exchange) under USFSPA, provided they meet the 20/20/20 rule: both must have been married for at least 20 years, the service member must have served at least 20 years, and that both must be overlapped for at least 20 years.
However, the ex-spouse may still have limited access to military benefits, provided that the marriage lasted at least 20 years and the military spouse served for at least 20 years, but the marriage only overlapped the service by 15 years.
If you are considering dividing a military retirement, contact our Florida divorce lawyer to help calculate how much should be divided. Our skilled and experience lawyers will provide you with legal representation in your divorce proceeding.
Spousal (Alimony) and Child Support
Couples frequently compromise in their marriages. In a situation where one spouse is a military member, the other spouse may decide to give up their career to raise their children or financially support the family while the military spouse climbs through the ranks of the military. So, if the marriage fails, you have no financial security since you put your career on hold. Fortunately, there is temporary and ongoing alimony or spousal support.
In a military divorce, there is a set of rules that are followed in granting and calculating alimony. While there is a set of guidelines for family support in every branch of the military, these guidelines are only applied when there is no agreement between both spouses regarding support and there’s no court order present.
Moreover, servicemembers are legally compelled to support their children in the same way that everyone else is. The military imposes punishments on service members who fail to pay support.
Get in Touch with our Melbourne Military Divorce Attorney
Military divorce can raise issues that may affect military residents. The process can be more complex due to more factors involving military rules and regulations. Our attorneys are here to help you with the specific issues that are involved in military divorce.
Let us assist you with:
- Military retirement and Survivor Benefit Plan SBP
- Division of assets and liabilities
- Custody and time-sharing
- Alimony and child support
- Life insurance
Call us today to discuss your legal needs with our team.
- NOLO’S ESSENTIAL GUIDE TO DIVORCE