Archive for the 'Military Divorce' Category

Paternity in the Military

Posted by admin on 27th April 2006

The rules for paternity in the military are the same as they are for civilians. The obligation for children is quite simple. Supporting the child is priority number one. A paternity test needs to and should be done. They can even be done while the father is overseas. The difference between dependants born to a military parent and those who are not is that those who are may qualify for benefits from the government.

A hearing might be set up in which the father must attend. He may be granted leave for his appearance in court to discuss paternity and/or child support. Commanders have no authority to order military fathers to participate with genetic testing. It is one hundred percent up to the father, unless a court order is issued. Members of the military do go through basic training. They also might have to participate in advanced training at some point.  Those two cases might cause the father to not have the ability to appear in court. If the military member leaves and misses any part of training, the training will have to be repeated. In the initial meeting with the father, after news of an order to establish paternity is delivered, an Affidavit of Parentage will be used. Records of any paid past child support will be obtained. If no support order exists then this time will be used for that. Three copies of the document are made. All are signed by both mother and father. Each parent receives a copy.

After all paperwork is read and signed, one copy is sent to the vital statistics agency in whatever state you reside in. At this time a voluntary military allotment may be enforced. This refers to the amount of a soldier’s pay that is set aside to provide support for their dependant or dependants. Military members do have the ability to amend or stop this payment at any time. One copy of the allotment document and one copy of the voluntary support agreement are signed and sent to a finance officer. After the paternity test has been completed and all documents are sent off, a military id can be issued to the dependant. Only will the child obtain this id if they are biologically linked to their military father. This id qualifies the child and even the entire family to receive medial benefits. All children reserve the right to a DNA test and no parent is eliminated from having to participate, despite their status or location.

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What’s the USFSPA (Uniformed Services Former Spouse’s Protection Act)?

Posted by admin on 27th April 2006

The USFSPA is a law that was passed by Congress in 1982. What it is for in essence is to provide some financial protection to some former spouses of service personnel. This law allows the states to divide the disposable retired pay as part of the property during a divorce. It also provides in some cases the direct payment of child support arrears, alimony and child support payments.  The total amount of the division cannot be more than 50 percent.

The problem when trying to implement this law is that many courts and attorneys do not understand the USFSPA law and how to use it in a divorce case.

For child support or alimony, the spouse that wishes to use the USFSPA law must apply for payment under the law and submit a certified copy of the court order stating the child support or alimony. The application form needed is DD Form 2293 and must be certified within 90 after the court order. If alimony is in arrears, this cannot be collected under USFSPA, but arrears in child support can. This information and form must be sent either by regular US mail, fax, or by a commercial mail service and sent to the Defense Finance and Accounting Service, Cleveland Center, Code L, P.O. Box 998002, Cleveland, OH 44199-8002.

What happens after the form is received is that the Defense Finance and Accounting Service will notify the spouse that they have received this form and if they do not respond with an amended order within 30 days then the office may agree and payment of the retired pay can be given to the person that filed the form.

Under the USFSPA, other additions can be added besides the award of disposable military retired pay such as a garnishment for division of property that is not part of this pay. It must be in addition to any child support, alimony, or award of military retired pay as property.

The military retired pay under USFSPA is not used for any type of garnishment for commercial debts and is the only medium that is available to recuperate a portion of military retired pay as a division of property for a former spouse.

If you are in doubt if you qualify, you should discuss the USFSPA with an attorney that understands federal and state laws concerning military divorces. The law was put in effect to ensure that former spouses of military personnel get the benefits that they are entitled to, but you must understand and to file for the benefits and how soon you should apply. If these are not done by the book, you could miss some major benefits for you and your children.

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What’s a Military Divorce?

Posted by admin on 27th April 2006

A military divorce is just a divorce where one or both parties of the divorce is actively serving or was military personnel in the armed forces such as military, reserve or guard or even retired military. This is not a legal term but is used when either person was a member of any military establishment.

However, there are a few things that are different when it comes to this type of divorce. The laws governing the couple are the same as with a civilian couple but there are some added to these laws that many people including attorneys do not know unless they have studied up on the rights and regulations that pertain to military personnel. So, neither person military or not is not exempt from the laws governing divorce in their state or in the state that they are residing. However, some states do have different residency requirements for active duty service personnel who wish to file for divorce and they are stationed in that state.

All military couples will go through the exact same type of divorce case as civilians. However, there are other factors that are considered that are not in civilian cases. Sometimes, because of where the service personnel are stationed the divorce can take a much longer time to finalize especially if they are stationed overseas or in a remote area.

When military personnel seek a divorce, not only do they need to understand the normal divorce proceedings, but also how it will affect their service in the military.

The court can delay a divorce or even appoint court counsel in many cases when one of the parties is in the military, federal legislation does entitle active members of the military to ask for this and the court will have to abide. You can find this information in the Service Members Civil Relief Act.
Even the computation of retirement pay is an issue when it comes to military personnel and the division of property as well. To understand this you will need an attorney that understand the laws and acts that pertain to military laws when it comes to divorce. For more information on this subject, you can review Qualified Domestic Relations Orders for private retirement accounts or Domestic Relations Orders for state and municipal pensions.

Even when it comes to alimony and child support the rules are different concerning military personnel. These will have to be calculated differently that if the couples were civilians.

Federal laws play an important role in military divorces. You should seek an attorney that knows the federal laws as well as state laws if you need to be represented in a military divorce.

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Treatment of Military Pensions on Divorce

Posted by admin on 27th April 2006

If you are involved in a military divorce then you should learn what the treatment of military pensions on divorce is. Each state is different and some do not have any special laws or stipulations regarding military personnel involved in a divorce, but the federal government does.

If you are involved in a military divorce you should seek counsel with an attorney that understands the laws governing military personnel, if you are the person in the military, the spouse of a military service person, or if either of you are retired from the military.

First, under federal law your spouse may receive a percentage of your disposable retired pay. As an example of what these means let’s say your retired pay would have been $1500 per month, but $200 of that makes up for disability pay and $50 would pay the Survivor Benefit premium. Therefore, after the $250 is taken out you would be left with $1250, this is the amount the court can use to calculate and use as martial property.

Some states do treat all pensions and retirement plans that were acquired by either spouse during a marriage as marital property. However, this does not necessarily mean that you will are entitled to half. The court will normally divide the marital property between you and your spouse as what they believe is fair.

Some of the factors that the courts may consider include:

Who earned what during the marriage including the housekeeping and childcare?

How long you were married

Both spouse’s age and health

What the reasons are for the divorce

Any bills that have accumulated during the marriage

Any anything else the court considers important for the division of marital property.

If the only thing that of value in your marriage is the retired pay, the court still may not give half. The formula used in most courts for division of the retired pay is the number of years married, divided by the number of years the military person served times 50 percent of the retired pay amount.

The court cannot order anyone to retire early from the service. The longer the person is in the military the smaller amount the spouse will receive and the spouse can not collect from the retired pay until the military personnel does retire.

The best way to learn how your state views military pensions is to speak with an attorney that understands the federal and state laws governing military divorce proceedings. Be sure that you also fully understand what benefits are available if your spouse was or is in the military.

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Military Divorce Myths

Posted by admin on 27th April 2006

A military divorce can differ sometime from non military divorces because when a spouse is in active duty they are under the authority of military rules and regulations that they have to comply with. Now for couples that fall in this classification there is certain legislation titled The Uniformed Services Former Spouses Protection Act. However many people really don’t know or don’t understand how military divorces work. This guide will help you learn what is some the common military divorce myths, and ones you may find out are true.

1. Military Divorce Myth- Spouses of people in the military will automatically receives a portion of the military retirement calculated on the number of years married while in the military divided by the total number of years in the military. 

Fact- Courts are not required to use a set method to figure these amounts of money that will be divided or awarded. However often they will base the division of the retirement on the date of separation. More than likely the spouse will receive nothing if there were no other assets from the marriage with the one whom served. 

2. Military Divorce Myth- People in the military are no different than non military when it comes to getting a divorce.

Fact- Active military personal and those retired from the military may only obtain a divorce from the state courts, Just the same as a non military person because there really is no such thing as a military divorce.

3. Military Divorce Myth- It’s required for people in the military who are separated from their spouse to pay bigger allocation to the spouse.

Fact- there is no requirement under state law for one spouse to send funds when the couple is apart and separated. However military regulations that may require a transfer payment depending on a case by case situation.

4. Military Divorce Myth- Members of the military gain benefits from waiting to file for a divorce.

Fact- There is no advantage at all and in some cases the claim that the spouse will be able to make by delaying can often is greater due to the delay. The non military spouse claims for maintenance will also likely increase under the law as one of the factors that is considered is how long you were married.

Never assume what you hear about military divorces to be true as you have now learned there is no such thing. There many other military divorce myths that you might have heard so it’s best to get the advice of a lawyer who is an expert in military family law and divorce.

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