How to survive Military Divorces?

Protection from Default Judgments

Another family law protection for a military member is the right to set aside a default judgment against them in a civil proceeding, including child custody. 50 U.S. Code section 3931(a). In the state of Texas, prior to the judge signing an order based on default judgment, the party is required to sign an affidavit of non-military service, which states the defendant is not currently active duty military. The party’s military status can be found on the official, Servicemembers Civil Relief Website, from the Defense Manpower Data Center where you can look up whether a person is on active duty. However, you must know the person’s full name and either social security number or date of birth.

The SCRA provides that the court shall reopen the judgment and allow the member to defend his/her position when:

1. The judgment was entered during the military service or within 60 days thereafter,
2. The member’s ability to defend the case was materially affected by the military service,
3. The service member has a meritorious or legal defense, and
4. The application to reopen is made during the military service, or within 90 days after military service is terminated.

Uniformed Services Former Spouses’ Protection Act

This federal act provides certain benefits to former spouses of military members. Under this law, former spouses are entitled to portions of the military member’s retirement pay, medical care, and exchange and commissary benefits.

The USFSPA grants two main authorities:

1. That state courts may treat military retired pay as they would other marital property to permit a qualified division; and,

No Automatic Entitlement: The USFSPA does not provide for an automatic entitlement to a division of military retired pay. For example, a couple may have been married throughout a full military career, yet the USFSPA does not compel a state court to award a division of retired pay to the former spouse.

2. That the appropriate government agency, Defense Finance and Accounting Service—Cleveland (DFAS-CL) could make direct payments to former spouses under certain conditions.

Enforcement: When a division of retired pay is court-ordered, USFSPA allows direct payments for former spouses only if the parties were married to each other for at least 10 years, during which time the member performed at least 10 years of creditable military service for retirement. To illustrate, marriages need not meet the condition that there were 10 years of marriage that overlapped with military service in order for the state court to direct that retired pay be divided. However, DFAS-CL will not make direct payments to the former spouse if these two requirements are not met. Payments would have to be established through the court or made personally by the Retired Soldier. The requirement that there are 10 years of marriage that overlaps with service does not apply to direct payment of child support or alimony.

Limitation: The court order will not be honored by DFAS-CL unless the court issuing the order held jurisdiction over the member. This jurisdiction requirement, however, does not apply to child support or alimony. Further, regardless of the award made by the state court, the government restricts direct payment to the former spouse to 50 percent of the member’s “disposable” retired pay. The exception to this is in the enforcement of child support garnishment orders, which can raise the direct pay amount to a total of 65 percent of disposable pay.

* Disposable pay is the product of the gross retired pay entitlement minus the following:

1. Amounts owed by the member for previous overpayments or recoupment;
2. Amounts deducted for court-martial fines;
3. Amounts waived under Title 38, US Code, for VA disability compensation;
4. Survivor Benefit Plan (SBP) premiums (only if the former spouse to receive the pay division is also the named former spouse SBP beneficiary);
5. Amounts of retired pay based on disability;
6. Amounts owed to the U.S.; and
7. Amounts withheld for federal and state income taxes, consistent with the member’s tax liability.