1. Service Members Relief Act. This act entitles those serving in the military and on active duty status to apply for a stay of divorce proceedings when because of their service there is a material effect on their ability to participate in the divorce. The service member can apply for a 90 day stay or longer depending on circumstances. In order to obtain a stay the service member must show (1) active duty status (2)that inhibits the service member’s ability to appear and defendant against the divorce (3) statement about when the service member will be able to appear (4) statement from the service member’s commanding officer stating that the members service prevents him/her from appearing and that leave is not authorized at that time. A service member can choose to waive these protections. It is important that if you know the service member is not able to participate in the divorce process because he/she is stationed overseas or does not know about the case that you not go forward without their participation. A judgement where a service member qualifies for the above protection can and likely will be declared void, and the case will start from the beginning. Massachusetts is also a one judge system so the judge may not appreciate an attempt to go around these protection.
2. Pension Benefits 10/10 Rule. In order for a spouse to qualify for an assignment of the service members pension the service member must have 10 years of credible service and the parties must have been married for at least 10 years. The amount assignable to the spouse is also capped at 50%. These restrictions are federally imposed so even though a Massachusetts Court has the authority to award pension benefits if the parties have been married less than 10 years, the order would not be enforceable. This just means that you cannot receive payment of these benefits directly from the Defense finance Accounting Service and will instead need to receive them from the service member.
3. Military Pay. A service member’s pay is made up of many different types of income. For example, all service members receive base pay depending on their rank, but they also receive what is called allowances. These allowances often make up the majority of the service member’s income, and typically include things like basic housing allowance (BAH), basic allowance for subsistence (BAS), combat pay, cost of living adjustments. These are just a few of the most common types of allowances, which should be included in the service member’s income for purposes of calculating child support and/or alimony. The child support or alimony award, however, under Federal law cannot exceed 50-65% of the service member’s disposable earnings. This is not, however, likely to be an issue because Massachusetts child support guidelines come out to roughly one-third of the earner’s gross income. It’s also important to note that you do not need a court order from the probate court in order to get child support from a service member. Military regulations require a service member to support their children and spouse, so if you aren’t receiving any support you might consider reaching out to their commanding officer. The amount provided will also likely be more than a court would award.
4. Health Insurance. The health insurance plan provided to service members and their families is called TRIcare. There are no premium costs for this health insurance plan, but there can be considerable deductions and co-pays when using civilian hospitals. Massachusetts state law requires that a former employer continue to cover an ex-spouse so long as the employee does not have a self-insured health plan, meaning the health plan bears the cost of any benefit claims. TRIcare is governed by Federal regulations and therefore exempt from Massachusetts state laws requiring continued coverage, which means that after a divorce the non-serving spouse will have to obtain their own insurance and often times at considerable expense.
5. Child Custody. Disputes about child custody are the most difficult cases for parents, judges and attorneys, and military divorce cases add an additional layer of complexity. Due to the nature of the military a service member does not typically know when they are going to be deployed and has little control over where they are stationed. Service members typically spend three years at an assigned location. Once the three years are up they are often assigned to a new location. The longer a person has been enlisted the more say they have over their new assignment, but ultimately the military has the final say in where they are assigned. Frequent relocation can be difficult for anyone, and this is factor that must be considered by judges in determining custody arrangements. The courts are always looking to see what arrangement is in the best interest of the children, and although the courts certainly do not want to punish a person for service in the military, the lack of stability in the case of deployment or relocation is often a factor the can weigh against the military parent.
Keep in mind each case is different and there are no one-size-fits-all solutions. The above is not mean to provide specific legal advice, but rather give you an idea of the type of things you should be thinking about if you are considering divorce. If you would like to learn more about military divorces please call our office today 978-341-5040.