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Military Attorney Sean Timmons Explains, “What Is a Military Divorce”

May 9, 2022

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In 1999, Congress designated May, as Military Appreciation Month. According to Military.com, May was specifically selected because it’s the perfect time to honor the many men/women who served, and the 1.4 million people currently active in the Army, Navy, Air Force and Marines. In the United States, our calendar has events commemorating these brave soldiers and honoring their achievements, Memorial Day, Loyalty Day, Victory in Europe Day, Armed Forces Day, and Military Spouse Appreciation Day. What is Military Spouse Appreciation Day? Military.com says, “Military Spouse Appreciation Day” was established back in 1984 by then President Ronald Reagan. It recognizes the military spouses who have a great impact on our lives and our military communities. While most married/divorced couples know being a spouse a come with it challenges, military couples face other obstacles that can make or break their relationship and therefore lead to a “Military Divorce.” Studies have shown that military members who are often deployed far away have a higher divorce rate than those of non-military couples. What is a “Military Divorce” and how does it differ from a Non-Military Divorce? Sean Timmons is a Managing Partner at Tully Rinckey PLLC. Before joining the Texas based law firm, Sean was a US Army Captain in US Army Judge Advocate General’s (JAG) Corps from 2009 until 2013 and served as a military law adviser on a variety of cases. Sean also has experience serving at Fort Hood as an Army Captain, where he was the primary legal adviser to the President (O-6) of the Fort Hood Officer Separation Board. Sean’s decorated Army career includes the titles of Private (E-1), Field Artilleryman, and Captain (O-3). Sean has also been a member of the State Bar of Texas International Law Section, the State Bar of Texas Military, Veterans Law Section, the State Bar of Texas Insurance Law Section, and member of the Houston Bar Association.

Ilyssa Panitz: Does someone in a military marriage have to have grounds to file for a divorce?

Sean Timmons: Generally, the answer is no. Most states permit “no-fault” divorce.

Ilyssa Panitz: Why do 80% of Military Marriages end in divorce?

Sean Timmons: Part of the reason for this is the unique stressors of military life on everyone involved in the marital situation. Another explanation is the military incentivizes marriage with housing allowance and separation allowance payments causing many to get married much earlier in life than they would absent a direct financial incentive. This results in foreseeable marital discord resulting in predictable divorces from marriages that were on shaky ground from inception.

Ilyssa Panitz: What are some of the challenges and issues couples face in a military divorce?

Sean Timmons: The resolution of the estate can be problematic due to consistent moves across jurisdictions, accumulation of assets across multiple assignments, the resolution of child custody issues and future living arrangements for children and the division of retirement benefits can all be causes of hostility and acrimony.

Ilyssa Panitz: Do military couples have to hire special lawyers to handle their divorce?

Sean Timmons: Depending on the complexity of the case; a specialized expert with direct knowledge of military law should be retained for use as a testifying witness to explain to the court the various complexities of military law and benefits allocation upon divorce. Generally, however for most divorces’ military couples should hire an attorney located in the community where they reside. Having a local attorney with particular knowledge of the local courts specific rules and quirks is of utmost importance.

Ilyssa Panitz: Does a person’s military rank and length of service play a factor?

Sean Timmons: Yes, the longer the marriage occurred in the military and the higher the rank of the divorced service-member the more likely the amount of funds to be divided goes up and the more there is to fight over. Lower ranked members of the military with no property, assets or children really should pursue an uncontested divorce and start life fresh.

Ilyssa Panitz: If a member of the military is going through a divorce, is the matter handled differently if that person serves in the Army, Navy, Air Forces or Marines?

Sean Timmons: Generally, no, however each branch of service has different specific rules and regulations things are generally handled in a similar manner across the armed forces.

Ilyssa Panitz: How do military couples, who are going through a divorce, settle custody/visitation, when one side might be deployed far away?

Sean Timmons: The military member is required to show proof of a “parenting plan” to ensure their children have adult guardianship should the military member be absent overnight. This often creates logistical headaches and requires the member of the military to concede primary custody to the non-member of the military.

Ilyssa Panitz: What happens to the benefits Military members spouses are entitled to when they are going through a divorce?

Sean Timmons: The entitlement to benefits remains as long as the marriage is valid. Generally, benefits end upon termination of the marriage. Some benefits have periods of time after the divorce offering a “transition period” such as installation housing and medical care. However, eventually the non-military divorced spouse will lose connection to the military and lose benefits. Some benefits may remain if the member is retired under the Uniformed Service-members Former Spouses Protection Act (USFSPA).

Ilyssa Panitz: How are Spousal and Child Support determined when a couple is going through a military divorce?

Sean Timmons: Generally, the court will follow applicable state law and you will need to look to the rules of the local state for each situation. Some states have alimony and others like Texas do not have alimony. Spousal support may be severely limited by a Texas based divorces; whereas a New York divorce may result in long term alimony payments for a significant duration of time after the marriage is ended.

Ilyssa Panitz: Does one side get Primary Custody if one side gets constantly deployed?

Sean Timmons: Generally, but each situation is up to judicial decision.

Ilyssa Panitz: Does the Military Member have to show proof of a Parenting Plan and a Custodial Arrangement?

Sean Timmons: Yes, absent a parenting plan and a settled custodial arrangement the member of the military face’s imminent separation and discharge.

Ilyssa Panitz: What happens to the military housing the family has been living in?

Sean Timmons: Generally, the non-military spouses lose eligibility to live off post.

Ilyssa Panitz: What happens if both spouses are required to be in court, but one side is serving in another country?

Sean Timmons: Under the Service-members Civil Relief Act (SCRA), the military member may request a delay of the proceedings until the end of the assignment.

Ilyssa Panitz: How much longer could a Military Divorce take, when one side is off fighting in another country?

Sean Timmons: It could take literally years to resolve.

Ilyssa Panitz: You mentioned that if a Military Member is found to have guilty of an “Extra Marital Misconduct” charge there could be severe ramifications?

Sean Timmons: Yes, it is possible for a member of the military to face dismissal or an “other than honorable” discharge if they are found to have engaged in an adulterous relationship in violation of the UCMJ Article 134 “extramarital misconduct,” which basically criminalizes adultery in the Armed Forces. Adultery allegations can be a career killer and ruin lives. This also creates a significant amount of drama and distraction to unit readiness as commands often spend a considerably amount of time investigating the purported merits of these salacious accusations.

Ilyssa Panitz: What happens if a military divorce is filed in one state and then the family moves and is living in another, but the divorce action is still going on?

Sean Timmons: Generally, the court where the divorce is filed will retain jurisdiction, however an attorney in the new state may challenge the jurisdictional reach of the prior court. Generally, to avoid this most states have a minimum residency requirement prior to eligibility to adjudicate divorces, so in practical sense often the reality is the original court retains jurisdiction until the issue is fully resolved with a final judgment.

Ilyssa Panitz: What is your number one piece of advice so people can survive and thrive from a military divorce?

Sean Timmons: Try and go to mediation and accept that both sides will leave the situation with less than they had together. Neither side should focus on retribution or revenge but instead be ready to amicably resolve all issues in dispute to the fullest extent possible and give each side an opportunity to reboot their life with a fresh start free from drama and allegations of scandal.

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