The divorce process is complicated in and of itself. When one or both spouses are or have been a member of the armed services, it can add to the complexity of the issues. In particular, issues that are unique to military families include financial issues arising from military retirement and other benefits. Moreover, issues pertaining to child support and allocation of parental responsibilities and parenting time may become complex due to frequent relocation or deployments.
Although divorce proceedings are handled in the state courts, the division of retirement benefits is governed under ERISA, which is a federal law. Accordingly, dividing retirement benefits typically requires special orders, typically referred to as Qualified Domestic Relations Orders (“QDRO’s”) or Court Orders Acceptable for Processing (“COAP’s”). Military retirement pay, however, is not divided pursuant to a QDRO or COAP. Rather, if the court order is sufficiently specific, and all requirements are met, the receiving spouse can apply directly for benefits from Defense Financing and Accounting Services (“DFAS”).
Of primary importance in dividing military retirement pay is whether the 10-10 rule has been met. The 10-10 rule of the Uniformed Services Former Spouses’ Protection Act (USFSPA) provides that in order for an ex-spouse to receive direct payment of retirement pay, the parties must have been married for a period of at least 10 years during a time in which the service member was credited with retirement pay benefits for at least 10 years. The same 10-10 rule applies to survivor benefits. If the 10-10 rule is not met, it does not mean that a share of the retirement pay cannot be divided. Instead, it only means that the non-service member spouse must collect from their former spouse, and not directly from the government.
Child support is another aspect of military divorces that is unique. For one, the various branches of the military have implemented their own internal procedures with respect to payment of child support and support for the family. Second, military service members receive pay based upon a number of factors, and the question of what is considered “income” for purposes of calculating child support can often be in dispute. Examples of military pay include Basic Allowance for Housing (BAH); Basic Allowance for Subsistence (BAS); per diem pay, etc. The attorneys at Kollias & Giese, P.C., have extensive experience representing service members, and can provide valuable assistance in determining which forms of compensation are included as income for purposes of child support or maintenance.
Finally, allocation of parental responsibilities and parenting time can become complicated when one or both of the parties are members of the armed services. Section 602.5 of the Illinois Marriage and Dissolution of Marriage Act sets out the “best interests factors” that the court considers in making decisions regarding minor children. One of the statutory factors is the terms of a parent’s military family care plan when a parent is a member of the armed forces who is being deployed. Additionally, the Service members Civil Relief Act provides procedural safeguards to deployed military parents to prevent the modification of parental allocation orders when the parent is unavailable to appear in court due to his or her service.
Issues unique to military personnel in divorce cases can be quite complicated, but an experienced family law attorney can help you navigate them with relative ease. The attorneys at Kollias & Giese, P.C. have handled numerous cases involving the issues discussed above, and would welcome the opportunity to be of assistance to you.