There are different issues involved with a military family law case as opposed to those between civilians. An already complicated process becomes even more so when you add considerations that are unique to service. If one of the parties in your case is serving, you should speak with an attorney who understands military divorce and family law issues.
At Youngberg Law Firm, we take an individualized approach to every case we handle. Let us help with your military divorce or other family law matter.
Special Challenges For Military Members During a Divorce
Whether you or your spouse are active or former service members, there are issues that you will face compared with cases that are between civilians only. These are just a few of the challenges that may be present in your divorce or other family law matter:
- Legal protections and rights when one member is on active duty
- Rights of former spouses of military members (including retirement benefits)
- Child custody when one parent is stationed out of the state or country
We will explore these and related issues below.
How Active Duty May Affect Your Case
It’s much more difficult to serve someone with divorce papers and other legal paperwork when that person is deployed, in combat, or otherwise on active duty. That’s one reason the Servicemembers Civil Relief Act (SCRA) was created.
The SCRA provides certain legal rights and protections to members of the military who are serving on active duty. In a typical civilian divorce, or other family law case, papers are filed at the courthouse and then served on the other party. The defendant then has a certain amount of time to answer. But because of the difficulty and unfairness of requiring a deployed service member to answer and appear in court, the SCRA effectively “stays” the proceeding. The SCRA also prevents defaults that would otherwise result from failure to answer or appear in court.
When a lawsuit is filed and the defendant doesn’t answer, the plaintiff is required to submit an SCRA affidavit. The purpose of this affidavit is to ensure that a service member’s rights are protected. This affidavit affirms one of three things:
- The defendant spouse is in military service
- The defendant spouse is not in military service
- The plaintiff is not able to determine the defendant’s military status
Rights of Former Spouses Of Military Members During a Divorce
A federal law known as the Uniformed Services Former Spouse Protection Act (USFSPA) provides benefits to former spouses of military members. Under the law:
- Former spouses may receive health care at military treatment facilities
- Former spouses may receive a portion of the military member’s retirement pay directly from the government
- State courts are allowed to divide disposable military retirement pay between the military member and the former spouse
- Benefits may be available to spousal or child abuse victims
These rights are useful for not only claiming a portion of the service member’s retirement benefits but also for receiving child support and alimony payments directly from retirement pay. There are some limitations, however, that you should discuss with an attorney. For example, the spouse will need to have been married for a minimum of 10 years to the service member. During that time, the service member must also have served at least 10 creditable years.
If the service member dies, the non-service member spouse may still be able to collect some benefits. One example is through what’s called the Survivor Benefit Plan, or SBP. The SBP may allow the former spouse to continue receiving income from the military spouse. A court can also order a spouse to provide SBP coverage to a non-service member spouse, but there are technical requirements that have to be followed for such an order to be effective.
Child Custody Challenges
All child custody orders, whether the parents are service members or civilians, are decided based on the best interests of the child. Generally speaking, courts will work to ensure the child has a relationship with both parents. But this is more complicated when one or both of the parents are serving in the military.
A service member’s spouse may be concerned that he or she won’t get to visit with the child during deployment. On the other hand, the non-service member spouse might worry that if custody is awarded to the military member, deployment could complicate matters. Fortunately, an experienced Texas military family law attorney can help devise creative solutions to account for these challenges.
For example, a parenting agreement can be negotiated whereby any visitation time missed due to deployment will automatically be made up upon the service member’s return. Or the service member’s parents may be able to exercise visitation in the member’s place while he or she is on active duty.
Custody may also be complicated if a child regularly resides with or visits a service member parent overseas. These cases could raise complex jurisdictional issues, on top of the underlying custody matters involved in the case. Any child custody case is challenging enough, but the constant relocation of a military parent can add a level of difficulty.
The important thing is to speak with an attorney right away if custody is at issue between you and the other parent. It may be possible to negotiate a parenting agreement that takes deployment into consideration while looking out for the child’s best interests. If a custody trial is necessary, we will advocate for you regardless of which parent is the service member.
Contact a Denton County Military Divorce and Family Law Attorney
Youngberg Law Firm works hard to help spouses and parents through any divorce or family law issue they may be facing. The same is true where one or both parties are military members. Put our firm’s experience to the test. Give us a call today to learn more.