A military divorce involves different rules than those in a regular divorce. If you or your spouse is active or retired member of the armed forces, then you need to contact a south Carolina divorce attorney that is experienced in military divorces. Some of the differences are obtaining service on an active duty spouse, residency requirements for the divorce and division of the military pension.
For a South Carolina court to hear any divorce, the residency requirement must first be met. A military divorce can be filed in South Carolina if either spouse lives in the state, the military member is stationed in South Carolina or if South Carolina is the legal residence of the military member. The legal residence is the state the member uses for tax purposes. However, that does not necessarily mean that the divorce can proceed. Under the Servicemembers Civil Relief Act (SCRA), military men and women are protected from lawsuits including divorce proceedings to enable them "to devote their entire energy to the defense needs of the Nation." A court may delay legal proceedings in the military divorce for the time that the service member is on active duty and for 60 days following active duty. Another problem may be the service of the divorce complaint if the military member is deployed. You can request that military serve your spouse, but he or she must consent to service.
If the military divorce is filed in South Carolina, then the divorce laws of South Carolina apply as to grounds for the divorce, division of the marital estate and child custody unless the real estate is in another state or the children reside in another state. Unless the parties consent, South Carolina will not have jurisdiction over those issues but can award the divorce.
Division of Retirement in a Military Divorce
The Uniformed Services Former Spouses' Protection Act (the Act), 10 U.S.C. 1408, recognizes the right of state courts to distribute military retired pay to a spouse or former spouse (hereafter, the former spouse) and provides a method of enforcing these orders through the Department of Defense. The Act itself does not provide for an automatic entitlement to a portion of the member's retired pay to a former spouse. A former spouse must have been awarded a portion of a member's military retired pay as property in their final decree of divorce, dissolution, annulment, or legal separation (the court order). The Act also provides a method of enforcing current child support and/or arrears and current alimony awarded in the court order. Court orders enforceable under the Act include final decrees of divorce, dissolution, annulment, and legal separation, and court-ordered property settlements incident to such decrees. The pertinent court order must provide for the payment of child support, alimony, or retired pay as property, to a spouse/former spouse. Retired pay as property awards must provide for the payment of an amount expressed in dollars or as a percentage of disposable retired pay (gross retired pay less allowable deductions). An award of a percentage of a member's retired pay is automatically construed under the Act as a percentage of disposable retired pay. A Qualified Domestic Relations Order is not required to divide retired pay as long as the former spouse's award is set forth in the pertinent court order.
In all cases where the member is on active duty at the time of the divorce, the member's rights under the Soldiers' and Sailors' Civil Relief Act of 1940 (SSCRA) must have been observed during the state court proceeding. In addition, for orders dividing retired pay as property to be enforced under the Act, a member and former spouse must have been married to each other for at least 10 years during which the member performed at least 10 years of creditable military service (the 10/10 rule). Also, to enforce orders dividing retired pay as property, the state court must have had jurisdiction over the member by reason of, (1) the member's residence in the territorial jurisdiction of the court (other than because of his military assignment), (2) the member's domicile in the territorial jurisdiction of the court, or (3) the member's consent to the jurisdiction of the court,. as indicated by the member's taking some affirmative action in the legal proceeding. The 10/10 rule and the jurisdictional requirement do not apply to enforcement of child support or alimony awards under the Act.
The maximum that can be paid to a former spouse under the Act is fifty percent (50%) of a member's disposable retired pay. In cases where there are payments both under the Act and pursuant to a garnishment for child support or alimony under 42 U.S.C. 659, the total amount payable cannot exceed sixty-five percent (65%) of the member's disposable retired pay. The right to payments under the Act terminates upon the death of the member or former spouse, unless the applicable court order provides that the payments terminate earlier.
In order to apply for payments under the Act, a completed application form (DD Form 2293) signed by a former spouse together with a certified copy of the applicable court order certified by the clerk of court within 90 days immediately preceding its service on this Center should be served either personally or by facsimile or by mail, upon the:
Defense Finance and Accounting Service
Cleveland Center, Code L
PO Box 998002
Cleveland, Ohio 44199-8002
(216) 522-5301 (Customer Service)
The application form should state which awards the former spouse is seeking to enforce under the Act (i.e., alimony, child support, and/or division of retired pay as property). If the application does not contain this information, then only awards of retired pay, as property will be enforced under the Act. A former spouse should also indicate the priority of the awards to be enforced in case there is not sufficient disposable retired pay to cover multiple awards. The court order should contain sufficient information for us to determine whether the SSCRA, and the Act's jurisdictional and 10/10 requirements (if applicable), have been met. If we cannot determine the parties' marriage date from the court order, then the former spouse must submit a photocopy of their marriage certificate. If the former spouse is requesting child support, and the court order does not contain the birth dates of the children, the former spouse must provide photocopies of their birth certificates.
If the requirements of the Act have been met, payments to a former spouse must begin no later than 90 days after the date of effective service of a complete application. If the member has not yet retired at the time the former spouse submits his or her application, payments must begin no later than 90 days after the date on which the member first becomes entitled to receive retired pay.
Court orders awarding a portion of military retired pay as property that were issued prior to June 26, 1981, can be honored if the requirements of the Act are met. However, amendments issued after June 25, 1981, to court orders issued prior to June 26, 1981, which were silent as to providing for a division of retired pay as property, cannot be enforced under the Act. Also, for court orders issued prior to November 14, 1986, if any portion of a member's military retired pay is based on disability retired pay, the orders are unenforceable under the Act.
Section 1408(h) of the Act provides benefits to former spouses who are victims of abuse by members who, as a result of the abuse of a spouse or dependent child, lose the right to retired pay after becoming retirement eligible. A former spouse may only enforce an order dividing retired pay as property under this Section, and all of the other requirements of the Act must be satisfied. The right to payments under this Section terminates upon the remarriage of the former spouse, or upon the death of either party.
In improving the processes in the Garnishment Operations we are now using a fax gateway directly into our Electronic Document Management System. To ensure your document is processed in a timely and efficient manner you must include the following information on the fax document and follow the additional guidance provided:
Member/Employee Social Security Number (SSN) - Court Orders/Documents will not be processed if the SSN is not on the document
Return Phone Number
Return Fax Number
Ensure original documents are clear and legible
In each fax transmission, include only correspondence for one member or employee (if you have multiple documents for one member, they can be sent on one fax transmission)
Survivor Benefit Plan (SBP) Coverage:
A member may elect "former spouse" SBP coverage for a former spouse who was originally a "spouse" beneficiary under SBP, provided that the parties were divorced after the member became eligible to receive retired pay. In addition, a former spouse may initiate SBP coverage on her own behalf ("deemed election"), provided that this election is made within 1 year of the issuance of the court order requiring SBP coverage. All correspondence regarding SBP coverage should be sent directly to the Retired Pay office:
Defense Finance and Accounting Service
Cleveland Center, DFAS-CL
[Attn: Code FRB (for retired members) or Attn: Code FRABA (for active duty members and reservists)]
PO Box 99191
Cleveland, Ohio 44199-1126
Toll free 1-800-321-1080
TriCare After a Military Divorce
The Continued Health Care Benefit Program (CHCBP) is a premium-based health care program administered by Humana Military Health Care Services, Inc. (Humana Military). CHCBP offers temporary transitional health coverage for 18-36 months after TRICARE eligibility ends. If you qualify, you can purchase CHCBP within 60 days of loss of eligibility for either regular TRICARE or Transitional Assistance Management Program (TAMP) coverage.
CHCBP acts as a bridge between military health benefits and your new civilian health plan. CHCBP benefits are comparable to TRICARE Standard with the same benefits, providers and program rules. The main difference is that you pay premiums to participate.
A South Carolina Family Law Attorney can assist you if you have questions about your military divorce and you are your spouse are an active or former service member or government employee. The attorney can review the facts of your case and advise you on your rights under the divorce laws of South Carolina.
For an attorney familiar with military divorce and division of military retirement call:
L. Wayne Patterson
10 Century Dr.
Greenville, S.C. 29606
Wayne is a family law attorney that practices on a regular basis in Charleston, Dorchester and Berkeley Counties of South Carolina.
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