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Military Divorce and Other Legal Issues Effecting Service Members

Posted by attorney Lisa Vari
Filed under: Military law

The Servicemembers' Civil Relief Act of 2003 (formerly known as the Soldiers and Sailors' Civil Relief Act) provides that certain civil lawsuits may not proceed for a period of time while a soldier or sailor is deployed. In family law situations, this protection generally applies to child and spousal support, divorce and equitable distribution actions including actions to modify or enforce a previously entered order. However, Service members (SM) should be aware that when separated, divorced, or never married to the other parent, the Service member should contact a civilian attorney to assist with custody matters prior to the Service member's deployment as the SCRA may not require a delay in the determination of custody matters when the Service member is deployed and appropriate arrangements between the parents have not been agreed upon prior to the deployment. It is especially important to remember that the military's requirement of a Family Care Plan and Powers of Attorney that attempt to assign custody rights to someone other than the biological parent are not binding upon a Family Court judge. Attorney Vari successfully argued to the Allegheny County Court of Common Pleas that the Service Members Civil Relief Act does not apply to stay a child custody action while a soldier or sailor is deployed overseas, the parents did not come to an agreement regarding custody arrangements prior to the SM's deployment, and the SM attempted to assign his custody rights to his parents. Most of the time, a Judge Advocate General (JAG) attorney cannot assist the SM with custody matters unless the parents are married or the non-Service member has primary custody of the minor children. Any service member facing a separation or divorce should be aware of the Uniform Services Former Spouses' Protection Act (USFSPA). The USFSPA is a law Congress enacted in 1982 to provide benefits to certain former spouses of military members. It allows state courts to divide military retirement benefits that include but are not limited to disposable military retired pay as marital property upon divorce under certain circumstances. The USFSPA, does not establish a right to any specific amount of retirement pay that a former spouse may be awarded in a divorce settlement. The decision whether to award retirement pay is solely in the discretion of the state court and the amount awarded will vary. Service members should be aware that a court has the right to divide retirement benefits even if the spouses were married for less than ten years. Other benefits under the USFSPA that are available depend on the former spouse's category. A spouse that passes the 20/20/20 test (the military member has completed at least 20 years of creditable service; the spouse has been married to the military member for at least 20 years at date of final decree of divorce; and the period of marriage overlaps the period of creditable service by at least 20 years) can receive commissary and PX privileges and full medical benefits. These benefits will be suspended if the spouse remarries; however, they will be revived if the subsequent marriage is terminated. A 20/20/15 spouse (at least 15 years of overlap between the marriage and the creditable service) may be entitled to full military medical benefits for a one-year period after which the spouse may purchase a DOD-negotiated conversion health policy. These benefits will be suspended if the spouse remarries and will not be revived unless the subsequent marriage is annulled. Former spouses of military members or retirees may have additional benefits under the Survivor's Benefit Plan (SBP), certain separation incentive programs, and in certain domestic abuse situations. A Survivor Benefit Plan (SBP) is a plan whereby a portion of a military retiree's pay is paid to a named beneficiary. Without this plan, all retired pay ceases upon the death of a military retiree. The decision whether or not to elect an SBP is made at the time of retirement and generally cannot be changed. If a court orders a service member to provide an SBP to a former spouse as part of a divorce settlement and the service member fails to make the required election, the service member will be deemed to have made the election if the service finance center receives a written request form from the former spouse. If the former spouse has obtained an order for SBP coverage, the former spouse must submit their request to the service center within one year of the date of the court order. The first step in any family law action involving a member of the military is to determine whether the particular court has the power to hear a case, also called jurisdiction to hear the case. In Pennsylvania, the PA courts have jurisdiction to enter a divorce decree if one spouse has resided in Pennsylvania for more than six months. However, jurisdiction to divide marital assets and debts, a military pension, and to hear support matters may be dependent upon whether the defendant resides, is employed, or domiciled in Pennsylvania. Custody cases are usually heard by the court where the minor child or children have resided for the six month period of time prior to the filing of the initial custody complaint. If a prior custody order has been entered, the court that entered the most recent custody order may be the appropriate court to seek modification of an existing custody order. Please inform our staff of your home of record, where you currently reside, where any minor children reside, and the court that has entered any previous orders relating to your family law matters so that we can determine if Pennsylvania is the appropriate court for your military family law matter.

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The statements in this guide are based on Pennsylvania law and have been issued to inform and not advise. The statements are general in nature and individual facts in a given case may alter their application or involve other laws not referred to here. Please contact an experienced Pennsylvania family law attorney or Judge Advocate General (JAG) officer who can advise you on the specific application of Pennsylvania laws to your circumstances.

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