Supreme Court hears case on military divorce

Military divorces have unique complications that civilian divorces do not, primarily because there are special state and federal laws that govern the way they are conducted as well as how marital property is divided.

Responding to a divorce action

One of the biggest differences between military and civilian divorces is that active duty military personnel cannot be held in default for failing to respond to a divorce action. This law was originally passed to protect deployed servicemen and women from being divorced without their knowledge. Divorce proceedings in New York can actually be postponed for the entire time that they are on duty and up to 60 days afterwards unless they voluntarily waive this right.

Child support and spousal support

In New York, the normal state child support guidelines apply when it comes to determining the right amount of child support to be paid. However, the combined payments for child support and spousal maintenance may not surpass 60% of one’s military pay and allowances.

Each division of the U.S. military requires its members to provide “adequate support” to their families, but in the absence of a court order, the military does not have the authority to force a serviceman or woman to involuntarily pay child or spousal support. Their commander can reprimand and even discharge them, but cannot simply withhold money for the benefit of a child or former spouse.

Retirement benefits

In order for the Defense Finance and Accounting Service to provide direct retirement payments for a former spouse, he or she must have been married to the military member for 10 years that overlap with 10 years of service. This requirement has led to the inaccurate assumption that ex-spouses may only receive retirement pay if they were married to a service member for 10 years. The reality is that retirement benefits may be also included in the divorce settlement agreement. In either instance, the maximum amount they can receive is 50%.

There is a catch with the Survivor Benefit Plans (SBP), which are paid to a surviving spouse after their military husband or wife dies. Although a New York judge may order that these benefits be paid to an ex-spouse, they are not payable if the military ex retires before 20 years of service have been completed.

Disability benefits

Disability benefits such as the following are usually not divisible:

• Military disability retirement
• VA disability
• Special Combat-Related Compensation
• Concurrent Retirement and Disability Pay

If a military member opts for disability benefits, a required dollar-for-dollar waiver of retirement benefits could decrease the amount a former spouse receives or eliminate it altogether.

In a case currently before the courts, a retired serviceman opted to waive part of his retirement pay to receive disability benefits. His decision affected his ex-wife, who had been receiving half of his retirement income for years. She now got less per month while he got more, as disability benefits were tax-free. As a result, she went to court asking for the monthly payments to be restored to the amount that she had received before the waiver. The Arizona Supreme Court dissented, but her husband took the case to the U.S. Supreme Court, which is still deciding on the issue.

With so many factors to take into account, a military divorce should be handled by a New York family law attorney who is familiar with the process and can help you achieve a settlement agreement that prepares you for a positive and independent future. Eskin & Eskin, P.C. is a Bronx, NY family law firm for family law matters. We are located close to the Bronx County courthouses and offer free consultations. Call 718-402-5204 for an appointment and visit www.EskinAndEskinLaw.com to learn more about our firm.