Divorce

DIVORCE CAN BE a challenging process. For members of the military and their spouses, it is even more so as there are not only state laws to consider, but federal laws and military codes of conduct as well. Some of the issues facing divorcing military couples:

JURISDICTION AND RESIDENCY

Under Florida law, a least one spouse must be a resident of Florida for at least six months before filing for a divorce here. Members of the military and their spouses have several options for filing. They can file where the military member is currently stationed, where either party has permanent residency (or intend to have permanent residency), where the parties own real property, where the spouses lived together last, or if the spouse is a permanent resident of Florida. In Florida, the law requires either that the military member and/or the spouse has residency, or he or she must be stationed in Florida for a Florida court to have jurisdiction over the matter.

SERVICE AND POSTPONEMENT

Active duty service members are protected by the Servicemembers Civil Relief Act of 2003 (formerly the Soldiers and Sailors Civil Relief Act of 1940). This Federal law requires active duty members of the military to be personally served with the summons and a copy of the complaint. However, the service member may sign a waiver affidavit it he or she wishes to waive this requirement. It also allows active duty service members to obtain a postponement of the divorce action while they are deployed (and up to 60 days after, particularly if they are deployed in a war zone). Public policy dictates that it would be unfair to require active duty service members to defend themselves in a divorce proceeding while thousands of miles away and, potentially in life-threatening and high stress situations which require their full attention—both for their own protection and for the protection of fellow service members.

FAMILY SUPPORT

Florida law requires all child support and timesharing issues to be considered in light of the best interests of the child. There is no exception for military families. In fact, military policy mandates that service members support their families even in the absence of a court order to do so. Service members who do not support their families may be punished under the military code of justice. Service members also are expected to keep reasonable contact with their families and others with a legitimate need to know their location and to minimize the involvement of their commanders, officers and other service personnel in their personal problems.

In Florida, the court must make special findings as to the service member’s pay and allowances, and family support (including child support and alimony) may not exceed 60 percent of the service member’s pay and allowances.

When awarding alimony, special consideration is given to spouses who have given up their careers, either because of deployment or to take care of the family. There is a rebuttable presumption for shorter-term marriages (fewer than seven years). However, even in shorter term marriages, if a spouse can demonstrate he or she had to give up his or her career due to providing support for the service member, he or she may still be awarded alimony.

RELOCATION AND TIMESHARING

Florida relocation laws, which prevent either parent from relocating the children more than 50 miles from the other parent without express consent, apply to military families just as they do to civilians. There are specific requirements and time frames set forth in the law that must be adhered to strictly, and the consequences of not doing so are harsh. However, service members who are to be deployed for at least 90 days may designate either a stepparent, grandparent or relative by marriage as a caretaker (concurrent custody) while the service member is deployed. The designation must be in writing and given to the other parent at least 10 days before deployment of the service member.

With regard to the parent plan and timesharing arrangements, Florida law does not permit the spouse of an active duty service member to make any permanent changes to the plan while the service member is deployed. A temporary change can be made if it is shown to be in the best interests of the child.

INFIDELITY

While infidelity is no longer grounds for divorce in Florida, nor may it be considered in a divorce case unless a spouse has squandered assets of the marriage to support a relationship with a party outside of the marriage, service members are held to a different standard. Infidelity by a service member is a violation of military law and code of conduct, as service members are held to a higher moral and ethical standard. Service members who engage in an adulterous relationship may be punished by, among other things, having their pay cut. Spouses of service members, however, are not held to this standard (unless they, too, are in the military).

BENEFITS

A thorough discussion of military benefits requires an entirely separate blog post; however, it is important to know that both state and federal law govern this issue. The Uniformed Services Former Spouse Protection Act (USFSPA) is used to calculate and divide military benefits for divorcing service members and their spouses. It also authorizes the military to directly pay a portion of service members’ benefits to former spouses so long as the parties have been married for at least 10 years overlapping at least 10 years of the service member’s active duty. (A former spouse may still receive benefits even if the marriage or active duty terms were shorter, or the situation does not meet the overlap requirements, however, he or she will not be paid directly by the military in these cases.)

Under Florida law, assets of military families are subject to equitable distribution just as civilian families. However, issues such as disability, long periods of separation, pay cuts because of infidelity, and debts may make the proceedings more complicated.

If you and/or your service member spouse are considering divorce, it is imperative that you consult with an attorney knowledgeable and experienced in military divorces.Contact Sandra K. Ambrose today to discuss the particulars of your case.