Things weren’t great when your service member deployed. As the months went by, he or she became more distant, more businesslike, more disinterested. Then your service member announced that the marriage is over and that you should consider yourself “left.” There are months left to this deployment: What do you do now?
There are many things the spouse can do to prepare for a divorce. This time apart from the service member can be very valuable — both from a legal perspective and from an emotional perspective. These six steps can be taken before the service member returns and will help whether you divorce or eventually reconcile:
Consult an attorney.
Many folks are apprehensive about consulting with an attorney, but they shouldn’t be. Think of a consultation like a job interview — for the attorney! Just because you have a consultation with an attorney, does not mean that you need to hire that particular attorney or file any court documents.
Most consultations take about an hour. This can be one of the most beneficial hours you spend over the next few months. You can learn about divorce in your state and how best to set up your case. It is particularly important to figure out how not to waste the time you still have while your spouse is deployed. Plus, if you don’t like the attorney, you can simply schedule another consultation with a different attorney. This should be a research and information gathering task only. You needn’t be stressed or pressured to do anything at this point.
Find a counselor.
As an active-duty military spouse, there is free counseling available to you. There are often programs and counselors at your local post or base but only before you divorce. The emotional issues you will deal with after learning that your spouse is leaving particularly if infidelity is involved — can be overwhelming. On top of that, there are often children who still need to be cared for and confusing feelings of stress, anger or worry about the service member who remains in harm’s way.
Speaking to a counselor can be a very useful outlet to assist in getting through this difficult time and it can be a wonderful way to actually begin the healing process long before the service member even returns.
A good general rule is that you can never have too much information or be too educated in readying yourself for a divorce. A service member who deploys normally doesn’t take with him many of the important documents in the home dealing with finances, insurance, and other legal documents with regard to the house, cars and investments. Similarly, mail continues to be delivered and there are monthly statements that further explain the financial situation of the household.
After speaking with an attorney and learning about what documents are important in your case, you can, in a relaxed and uninhibited manner, begin searching for, researching and collecting these important legal and financial documents. You can make copies of everything and give the copies to an attorney or even a trusted friend and these documents will come in handy during the discovery process or much later and if necessary, at trial.
Follow the Money.
As you gather the important documents such as mortgage statements, deeds and titles to homes, titles to cars, monthly bills and financial statements, among many other items, it is a good idea to figure out exactly how much money is necessary each month to keep the household running. One of the hardest parts of any divorce case is realizing that the income or incomes that provided for one household will soon be paying for two. Sitting down and creating a budget can be extremely beneficial and is something you can also bring to your attorney’s attention so that he or she can help set realistic goals and strategies for your case.
In addition to getting a handle on the finances and budgets, saving money during this time can be especially prudent. You will want to speak with an attorney about this, but if you can put aside money for yourself and your case, this can be very helpful, particularly if your spouse tries to do something wicked or nefarious.
It is important to note that this can be a particularly thorny legal issue and you do not want to be accused of stealing or hiding money during your case. Speaking with an attorney about this issue beforehand is very helpful to stay within the parameters of your state’s laws.
Begin the Separation.
Many states require a divorcing couple to be “separated” for a specific period of time before the final divorce is granted by the court. For example, if there are minor children, a couple must be separated for 12 months before a court will grant the divorce.
By consulting an attorney, a spouse in this situation can properly begin the separation period and actually use this time apart to count toward the “separation period.” If done correctly, the spouse does not have to wait until the service member returns to start the clock.
The Rest Of Your Life.
One of the benefits to living several thousand miles apart from your spouse while going through this process is that you can create pockets of time to begin contemplating where you want to be 10 years from now.
As hard as it may be to think about moving on, particularly in the early stages of learning your spouse wants a divorce, it can be extremely valuable to think about your life and your children’s lives.
What do you want to create for them several years down the road?
This doesn’t just mean “geographic,” as in, where do you physically want to live. This includes many wonderful benefits afforded to service members such as: Post 9/11 GI Bill, service members’ Group Life Insurance, Thrift Savings Plan, military pensions and the Survivor Benefit Plan, to name a few.
Using this time wisely and speaking with an attorney early on about your case can be extremely beneficial and place you way ahead of your spouse when it comes time to negotiate for these and many other benefits — either for yourself or for your kids.
Even though being “left” by your service member during a deployment is emotionally devastating, you do not have to sit idly by and feel like the victim. By following these steps, you can take action and set your case up for success by using the time to take control of the situation and to seek constructive support — thereby benefiting your legal case and your mental health.
Legally, military personnel who are getting divorced are no different than anyone else, so the procedural process is the same. If you are in the military or are a military spouse, there are some additional factors that can affect your divorce.
For instance, the process may take longer if one of you is on active duty in a remote area or have a permanent station overseas. Some states have relaxed the residency requirements for active duty service personnel who want to file for divorce in the state he or she is stationed.
Besides understanding the basic divorce process, military couples should be knowledgeable about the role of the Uniformed Services Former Spouses’ Protection Act. The USFSPA provides a federal statute for the military, guiding them to accept state statutes on addressing issues, such as child support, spousal support and military retirement pay/pension. While states have always had the authority to treat retirement and pension plans just like any other marital asset, the USFSPA permits the states to classify military retired pay as property, as opposed to income.
Military Retirement Pay and Divorce
Direct retirement payments are made through the Defense Finance and Accounting Service (DFAS). In order for the military to provide direct retirement payments to an ex-spouse, the couple must have been married 10 years overlapping with 10 years of service.
For example, if you were married for 12 years, and one spouse was in the military for seven of those 12 years of marriage, the other spouse would not be entitled to a direct payment from DFAS. If you were married for 12 years, and one spouse was in the military for 10 of those 12 years, the other spouse would be entitled to a direct payment from DFAS.
Depending upon the state’s date of division, the amount of time you have been married may be judged by different criteria. This means that Utah may view you as being married nine years, while California considers you having been married 10 years.
Not qualifying for the DFAS direct pay does not mean you are ineligible for a portion of the payment. To receive your portion, the criteria would need to be included as part of the divorce settlement agreement. Keep in mind that the award of military retired pay may be in addition to child support, and alimony, or maintenance.
The maximum amount of pension income an ex-spouse can receive is 50% of the military retirement pay. Once the order is filed with DFAS, it will take three months (90 days) for the direct payments to begin if the ex-spouse is already receiving their pension. In the situation of active military members, the payments will begin 90 days after the newly retired member becomes entitled to receive their first payment. If child support is being taken from the pension, the maximum combined amount that can be deducted is 65% of the disposable retirement pay.
Calculating Marital Share for Active Military
There are different methods of calculating what percentage of the pension to which ex-spouses are entitled. The document filed with the court will need to clearly state the formula used to derive the amount of payment. Again, the length of the marriage will come into play. One of the more common trends is to count the number of points accumulated in the marriage rather than months. This is especially true for spouses serving in the Reserves.
The three methods used to determine the amount of payment are:
Net Present Value – This is more common if someone wants a buyout up front.
Deferred Distribution – A share amount is calculated at divorce, but the receipt of the funds is deferred until the service member retires.
Reserve Jurisdiction – This is the most common method. The share the ex-spouse receives is calculated at retirement.
Thrift Savings Plan
The thrift savings plan (TSP) is treated the same as a 401(k). There are specific requirements that must be met by the court order that differ from a civilian retirement plan division order. For a complete brochure on information on divorce orders and your TSP, refer to the TSP website.
How does military divorce while overseas work?
There are a few common questions that people have about overseas military divorces. First and foremost, they ask if the local laws apply. You might worry about needing to adhere to local divorce laws. In some countries, this could be a major disadvantage for you or your partner.
Fortunately, a military divorce while overseas ignores the local divorce laws. Instead, it relies on Utah divorce laws. While you might be living in a foreign country, you still follow Utah divorce law. If you want a valid divorce, you need one that your home state recognizes. If you get a divorce that adheres to local standards, it won’t apply back in the Utah. You could have a divorce in one country and a legal marriage in the Utah.
However, your legal home could be in a foreign country. In this rare case, you would need to adhere to the local divorce laws. These laws vary from country to country. In some situations, you may have several legal homes. If you do, then you can choose where you file for a divorce.
How can you get a divorce?
Another common question relates to the process of getting a military divorce overseas. It is not enough to go to the legal assistance office for a divorce. Instead, you need to go to court. In most situations, you need a private attorney. The only exception is during uncontested divorces. If you and your partner can agree on everything, then you might not need a private attorney.
It’s worth noting that the legal assistance office can still help you. If you go to them, then they may be able to advise you on the divorce procedures. Additionally, they may be able to prepare and witness the signing of a separation agreement. If you want an uncontested divorce, the office can explain the process for that.
For a contested divorce, you need the help of an attorney. He can help you through the filing process. In some situations, you may need to hire an attorney from your home state. If you have several “homes,” you need to choose one from the place where your legal home resides. You need to be able to qualify for in-state college tuition at the residence. While you may consider your military home your home, you need to make sure it meets the legal definition of your legal home.
Can you get a cheap or quick divorce?
Some overseas couples decide that it might be easier to get a divorce in a place like Mexico or the Dominican Republic. Although divorce in these places is cheaper than the Utah alternative, it doesn’t mean anything. It’s likely that your home state will not recognize the divorce.
Making the Decision
Unlike civilians, military personnel often have the flexibility to choose where they file for divorce. If you have multiple homes that qualify as your legal home, then you have the luxury of choosing. Every state in the US has different divorce laws. Likewise, every country has unique laws. Before you file, you need to decide which the best option for filing is. And you need to be certain that you file in the state or country that applies to your marriage.
If you have a hard time finding out where your legal home or homes may be, there are a few tricks. First, look at where you are registered to vote. Then, you should consider where you pay your state taxes. Make a list of the states in which you have banking accounts, drivers’ licenses, and car titles. If you pay real estate taxes on property in certain states, that can also count towards your legal home. Once you know where you can file for divorce, you need to consider the perks of each state. In some states, there are no-fault divorces. When you file for your divorce, you don’t need to prove that the other party was at fault in any way. Depending on the circumstances of your divorce, this could be a good thing.
Getting the Help You Need
Filing for military divorce while overseas is complicated. If you make one wrong move, you could get a divorce statement that means nothing. It’s important that you get your divorce right the first time. Additionally, it’s important that you complete the process in the easiest possible way. If you’re a service member, the legal aid office can be very useful. They can advise you on the procedure. However, you may need more extensive help. If you have concerns about your divorce, you should contact a Divorce lawyer. With his help, you may be able to get the ideal outcome from your divorce.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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