Service members and non-military spouses pursuing a divorce face a unique set of challenges that civilians do not encounter when attempting to dissolve their union. Getting divorced is a complex process, and it is especially complicated in the military. Even attorneys who have practiced family and matrimonial law for years can find themselves at a disadvantage when attempting to represent a service member or a non-military spouse.
Tully Rinckey PLLC’s military divorce attorneys can help you navigate the potential pitfalls that military families face in their legal matter. These pitfalls can lurk in the division of property, where to file for divorce, military retirement and disability pay, child custody and child support. The team of attorneys at Tully Rinckey PLLC can represent service members or their non-military spouses in New York, Texas, California and Washington, D.C. If you are located elsewhere, we can advise your attorney on the unique nuances of military divorce, child support and retirement or veterans’ compensation issues.
Call us today to schedule a consultation with one of Tully Rinckey PLLC’s experienced military divorce lawyers.
Military divorces require an attorney who understands the nuances of military law. Retirement and disability pay is one of the most complex aspects of military divorce. If you are in New York, Texas, California or Washington, D.C., Tully Rinckey PLLC’s military divorce attorneys can represent you and help ensure that issues pertaining to military retirement and disability pay are properly addressed in your divorce decree. If you are located elsewhere, we can advise your attorney on these issues.
While military disposable retired pay is generally divisible upon divorce, VA disability compensation, military disability retirement benefits, Special Combat-Related Compensation (SCRC), and Concurrent Retirement and Disability Pay (CRDP) are usually not divisible. If a service member elects for disability compensation, it typically requires a dollar-for-dollar waiver of retired pay. Consequently, that decreases the amount of the spouse’s share of the service member’s retirement. In some cases, the spouse’s share of the retirement could be eliminated altogether.
Special Combat-Related Compensation and Concurrent Retirement and Disability Pay do not involve the same waiver, at least not a dollar-for-dollar waiver. In order to be eligible for Special Combat-Related Compensation and Concurrent Retirement and Disability Pay, the service member must meet several criteria. For instance, if a service member has a 30 percent disability rating not related to combat-service, he or she will not be eligible for either program.
These issues are best addressed by an experienced military divorce attorney who is able to craft a divorce decree that accounts for these nuances. The divorce decree should address VA compensation and disability pay, and account for circumstances in which the former service member waives some or all retired pay for VA disability compensation or Concurrent Retirement and Disability Pay. Since disability compensation and Concurrent Retirement and Disability Pay are tax-free, these issues arise frequently in military divorces.
For service members, a divorce decree can be crafted to protect your service benefits. Ensure that your retirement is adequately protected in your divorce decree to avoid returning to court to fight for your retirement.
For a former spouse, a divorce decree can be carefully crafted to ensure that you are reimbursed in the event that your share of the retired pay is decreased as a result of the service member’s receipt of disability compensation. Whether you are awarded a share of your spouse’s “gross retired pay” or “disposable retired pay” can mean a difference of several hundred thousand dollars. Don’t jeopardize the security of your retirement; consult with an attorney who understands military retirement and disability.
Military retirement is complex. It can be costly to approach a military divorce with an attorney who is unfamiliar with the nuances of military retirement and disability. Once a divorce is final, it is very difficult to change the terms. Tully Rinckey PLLC’s military divorce attorneys are knowledgeable, experienced and able to assist service members or their spouses. Call us today.
Custody and child support can be complicated for service members and their families based on the circumstances of a service member’s deployment. It is important that the custody arrangement address these unique demands on a service member’s time, which civilians may not face. Before crafting a custody agreement, it is important to ask several important questions, including:
These are complicated issues that civilians simply do not encounter. Tully Rinckey PLLC’s military divorce attorneys can represent service members or their non-military spouses in New York, Texas, California and Washington, D.C. If you are located elsewhere, we can advise your matrimonial and family law attorney on the unique nuances of military child custody issues. We can help you navigate the complex issues surrounding child custody and child support for military families. Call us today.
It is important that custody agreements are carefully crafted to ensure that the service member has telephone contact with the children while deployed and substantial time with the children while on leave. Additionally, if the service member is the custodial parent, it is important that when he or she returns from deployment (and someone else has been caring for the children) that they are not hit with a petition to modify custody upon their return. Some states have laws that prevent the modification of a custody order based on a service member’s deployment; other states do not. It is essential that your attorney understands the laws in your state and is aware of potential complications when crafting your custody arrangement.
Although the respective branches of service have guidelines for family support that can be ordered by a commanding officer, these guidelines are often different from court-ordered child support. Child support is also a bit more complicated for service members, as certain allowances are included when calculating child support and others are not, depending on the law in your state. For instance, the service member’s housing and subsistence allowances are usually included as income for child support purposes, while the clothing allowance is often not. As such, the service member’s tax return is not reliable for determining the amount of support owed. Tully Rinckey PLLC’s attorneys have extensive experience with military families facing custody and support issues, and they can help you achieve the most favorable outcome for your family.
Tully Rinckey’s attorneys can help you navigate the potential pitfalls that military families face in military divorce proceedings, including the division of property and where to file for divorce. We stand ready to fight for your interests.
A: Generally, no. You may be entitled to half of the marital share of his retirement, or the portion that was earned during the marriage.
A: No, the rule your wife is probably referring to is what’s known as the “10/10/10” rule. The Defense Finance and Accounting Services (DFAS) will only make direct payments to you for your share of your wife’s retired pay if your wife served in the military for at least 10 years, you have been married for at least 10 years, and 10 years of your marriage overlaps with 10 years of her service. However, that only applies to direct payments from DFAS, not your eligibility to receive a portion of her retired pay in the divorce. If you don’t meet the “10/10/10” rule, your wife will simply have to pay you your share of her retired pay.
A: Probably. If your husband elects to receive disability benefits, he usually must make a dollar-for-dollar waiver of his retired pay. Since disability benefits are typically not distributable in a divorce, this will likely involve a dollar-for-dollar reduction in your portion of his retired pay. To protect your interest in his retirement, your divorce decree should include a provision that requires him to reimburse you for the reduction in your portion of his retired pay.
A: Not necessarily. It will depend on the details of your divorce decree. An experienced military divorce attorney can craft your divorce decree so that your husband will only receive half of the marital portion of your disposable retired pay (which excludes disability compensation) at the time of your retirement, so that you don’t have to reimburse him for his share of any waived retired pay.
A: It depends. If your husband elected a survivor benefit plan and chose you as the beneficiary, then you will receive 55 percent of his retired pay. Your divorce decree should create an affirmative obligation for him to do so.
A: Unless your agreement specifies otherwise, DFAS will take the cost right out of your retired pay. Since the survivor benefits are for your ex-wife’s benefit, your divorce decree should specify that she is responsible for paying the cost of the survivor benefits.
A: That depends on the wording of your military retired pay division order. If you are awarded a dollar amount in the order, then you will not receive cost-of-living adjustments. If the order awards you a percentage of his retired pay, then you will receive cost-of-living adjustments. Cost-of-living adjustments can equate to additional hundreds of dollars per month. You should make sure that your divorce decree and retired pay division order grants you cost-of-living adjustments.
A: Probably not. Just like disability compensation, Special Combat-Related Compensation benefits are generally not distributable during a divorce.
A: Probably not. While your wife would be entitled to half of the portion of your military disposable retired pay that accrued during your marriage, you generally cannot be made to pay spousal support with your disability benefits. However, if you have other sources of income, such as income producing property, that could be used to satisfy an award of spousal support.
A: If you and your wife have been married for more than 20 years during her military service, you will be eligible to stay on Tri-Care after you have divorced. This is known as the “20/20/20” rule. To qualify, your spouse must have served in the military for at least 20 years, you must have been married for at least 20 years, and 20 years of your marriage must overlap with her service. In other words, she must have served for 20 years during your marriage. If not, you may want to consider a legal separation which would allow you to remain on your wife’s insurance policy.
A: Possibly. In order to prevent her from obtaining custody during your deployment, your divorce decree should state that your deployment is not a change of circumstances enabling her to modify the custody agreement.
A: His income, along with housing allowance, is considered income for the purposes of child support. However, his food allowance is not. Additionally, his housing allowance is not taxable, so it will appear on his tax return. You will need to evaluate his leave and earning statement to get an accurate depiction of his income.
A: That will depend in the law in your state. Generally, disability compensation is included as income for the purposes of calculating child support.
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