Jurisdiction Most military servicemembers are stationed someplace other than their home state. Their families may or may live with the servicemember at the duty station, and the spouse may have a different home state. In some cases, there may be three different states that have jurisdiction to grant a divorce. If a servicemember is stationed in Florida, he or she immediately satisfies the residency requirement. If a servicemember is a Florida resident stationed elsewhere, the servicemember is eligible to file for divorce in Florida. But, Florida may not have jurisdiction over the financial issues or any children of the marriage. In almost all cases, issues concerning the children must be resolved in the state where the children have been physically present for the past six months. Service of Process Florida law requires that a respondent be personally served with a summons and a copy of the divorce petition for the court to have jurisdiction. In a military divorce, however, there are special military rules and federal statutes governing service of process and defaults. In addition, although each branch of the military has policies authorizing assistance with service of process in civil matters, there are practical difficulties in serving personnel located on a military base. In some instances, especially where the divorce court is not in the same state as the base, the military may not be able to compel a service member to accept process and may not offer sufficient additional assistance to help the process server obtain access. The rules get even more complicated if the service member is deployed overseas, where federal law and international law govern service of process. Federal law provides special protections for service members who are on active duty. For example, even after proper service of process, a party cannot obtain a default judgment against a service member without the appointment of an attorney ad litem. Most practitioners have no idea that filing a false affidavit of military service is actually a federal crime. You should hire an attorney who is knowledgeable about these issues. You do not want to pay for your attorney to learn military divorce law for the first time. Servicemembers Civil Relief Act (the "SCRA") The purpose of the Servicemembers Civil Relief Act (the "SCRA") is to enable service members to devote their entire energy to the defense of the Nation. It thus provides for the suspension of legal proceedings and reduction of certain financial obligations that may adversely affect the rights of service members and their families during military service. The SCRA provides the servicemember the right to postpone (i.e., "stay") civil and administrative proceedings, including child support determinations, eviction proceedings, and garnishment proceedings, because of deployment or other military duties. The Uniformed Services Former Spouse Protection Act (the "USFSPA") Numerous financial issues arise when a service member decides to get a divorce. The Uniformed Services Former Spouse Protection Act (the "USFSPA") addresses the military spouse's continuing eligibility for commissary, exchange and health care benefits as well as eligibility for a portion of the service member's military retired pay. It also provides mechanisms to enforce (i.e., collect) amounts awarded from a service member pursuant to a divorce decree. The USFSPA does not automatically give a former spouse any rights to the service member's retired pay. Rather, the law permits a state court to treat disposable military retired pay as "marital property" and therefore divide it in a divorce action in such a way that it is paid to the former spouse directly by the DFAS. Disposable retired pay is defined as gross retired pay less authorized deductions. For court orders dividing retired pay as property to be enforced under the USFSPA, a service member and former spouse must have been married to each other for 10 years or more during which the member performed at least 10 years of military service creditable towards retirement eligibility (the so-called "10/10 Rule"). The USFSPA also provides a method for enforcing child support and alimony orders. The 10/10 Rule does not apply to enforcement of child support or alimony awards under the USFSPA. The maximum that can be paid to a former spouse under the USFSPA is 50 percent of a service member's disposable retired pay. In cases where there are payments due under both the USFSPA and under a garnishment for child support or alimony, the total amount payable cannot exceed 65 percent of the member's disposable earnings. The USFSPA also permits former spouses to continue receiving commissary, exchange, and health care benefits after a divorce in certain cases. Determining Military Income When the family court is tasked with establishing the amount of child support or alimony, the military pay system presents special issues. Some of the relevant pay information is avail-able from the service member's Leave and Earnings Statement ("LES"), which is the equivalent of a military pay stub. The LES reflects not only earnings and deductions, but also the service member's rank and years in service. Money paid to service members that is designated as "pay" is typically taxable. Examples include basic pay, combat pay, hazardous duty pay, and flight pay. Military "allowances," however, are typically tax free, such as housing allowances (BAH), subsistence allowances (BAS), cost of living adjustments (COLA), disability pay, and per diem payments. The question of whether such tax free allowances increase a service member's "income" for purposes of determining the amount of child support is a question that has vexed even experienced divorce judges in Florida. The answer depends on whether these payments reduce the service member's cost of living. BAS and BAH are cash benefits that are typically included as "gross income" for purposes of calculating child support. However, if a service member receives in-kind benefits, such as living in military housing in lieu of receiving BAH, the cash benefit may no longer be treated as gross income and may require a more complex analysis. Moreover, Florida's appellate courts still have not agreed on how disability and retirement pay should be treated for purposes of awarding alimony. Furthermore, because service members receive differential pay when they are deployed, the calculation or child support or alimony may need to be based on a yearly average pay amount. Military Family Support Members of every military marriage should be aware that, in addition to the state court process for awarding alimony and child support, each branch of the military has its own regulations concerning family support. These military regulations operate in the absence of (and prior to) the entry of a divorce agreement or court order. Because of delays that may occur in a state court divorce proceeding, a spouse who is seeking financial support has the ability to contact the service member's chain of command to obtain interim enforcement of family support obligations. It is important to retain counsel who is experienced in the enforcement of such regulations to make sure that interim support from military pay is fair and appropriate. Dividing Military Benefits Divorce typically involves dividing marital assets. In a military divorce, those assets frequently include the service member spouse's military benefits, such as the right to military retirement pay, healthcare for the children, and even the value of the member spouse's leave days accrued during the marriage. With the parties' consent, it may also include education benefits under the Post-9/11 GI Bill. The rules and statutes governing these various benefits involve complex questions of state and federal law. Dividing Military Pensions One of the most important issues in a military divorce is the potential division of a service member's retired pay. The division of military retired pay is governed by the Uniformed Services Former Spouse Protection Act (USFSPA). The USFSPA does not automatically give a former spouse any rights to the service member's retired pay. Rather, the law permits a state court to treat disposable military retired pay as "marital property" and therefore divide it in a divorce action in such a way that it is paid to the former spouse directly by the DFAS. Disposable retired pay is defined as gross retired pay less authorized deductions. For court orders dividing retired pay as property to be enforced under the USFSPA, a service member and former spouse must have been married to each other for 10 years or more during which the member performed at least 10 years of military service creditable towards retirement eligibility (the so-called "10/10 Rule"). The spouse's share of retirement pay is usually based on the service member's average pay for the 36 months preceding the filing date. This is known as a "High 36" calculation. However, the maximum that can be paid to a former spouse under the USFSPA is 50 percent of a service member's disposable retired pay. In cases where there are payments due under both the USFSPA and under a garnishment for child support or alimony, the total amount payable cannot exceed 65 percent of the member's disposable earnings. Finally, any division of military retirement that is not paid through DFAS will need to address the tax consequences so that the tax burden is fairly shared between the parties. SBP - the Survivor Benefit Plan A service member's right to receive military retirement pay terminates upon his or her death. The Survivor Benefit Plan ("SBP") provides service members with the opportunity to purchase an annuity that pays a defined benefit to eligible beneficiaries upon the service member's death. The annuity pays a percentage of the service member's retirement pay on a monthly basis for the lifetime of the beneficiary. This coverage can provide an eligible beneficiary with up to 55% of the service member's monthly military retirement pay. Although there is no cost associated with SBP during active duty service, SBP coverage comes at a premium after retirement. SBP coverage for a retirement pay annuity can cost as much as 6.5% of the service member's gross retired pay. (Fortunately, the SBP premium is deducted from retirement pay on a pre-tax basis. In other words, the service member is not taxed on the portion of his or her income used to pay the SBP premium.) Once a beneficiary starts receiving SBP annuity payments, the payments are adjusted each year based on the Consumer Price Index. This is known as a Cost of Living Adjustment or "COLA." Subject to certain exceptions, the service member must elect SBP coverage at the time of retirement. Although the service member's SBP election is frequently irrevocable, there are circumstances where a service member can change his or her SBP election. If you are a military service member going through a divorce, chances are that your former spouse will demand a share of your military retirement and that you make an SBP election with the former spouse as the exclusive beneficiary. Unfortunately, the Survivor Benefit Plan is not always the best means to insure a spouse's interest in the service member's military retirement. One reason is because a former spouse who remarries before reaching age 55 is not an eligible beneficiary under the Survivor Benefit Plan. If you are a former spouse, make sure you weigh the options available to secure your interest in the retirement. And, if the court orders that the service member insure your interest in the retirement using SBP, make sure that you file the appropriate forms with DFAS to make a deemed SBP election within one year of the court order. Military Health Care Benefits In order to qualify for continued benefits a former spouse must show that the service member served at least 20 years of creditable service, that the marriage lasted at least 20 years, and that the period of the marriage overlapped the period of service by at least 20 years. A former spouse who meets these requirements is known as a 20/20/20 former spouse and is entitled to full commissary, exchange and health care benefits. These benefits include TRICARE and inpatient and out-patient care at a military treatment facility. Former spouses who do not meet these requirements lose their commissary and exchange privileges once the divorce is final. In cases where the service member served 20 years of creditable service, the marriage lasted 20 years, but the period of the marriage overlapped the period of service by only 15 years, the former spouse is entitled to full military medical benefits only for a transitional period of one year following the divorce. After this year of coverage, the spouse may purchase a DOD-negotiated conversion health policy. Former spouses who are neither 20/20/20 nor 20/20/15 former spouses are not entitled to any military health benefits after a divorce. But they are eligible for the DOD Continued Health Care Benefit Program, a premium-based temporary health care program for 36 months of coverage until alternative coverage can be obtained so long as they enroll within 60 days of losing full military health care benefits.