Serving your country is one of the most admirable occupations someone can choose. It’s also fraught with hardship. Many members of the military marry – and often, they marry young, which means their young spouses and children also serve and sign on to endure long-term absenteeism of their spouse. Both parties in a military marriage have tough hurdles to overcome and often times it all just becomes too much.
With the divorce rate among military families coming in at above 50%, it’s important for any military divorce attorney to understand the intricacies that come with divorce among members of the armed forces. Deployments, field trainings, long hours, work-related travel, loneliness, financial hardship, medical issues, changes of duty station, being away from immediate family: all of these are uncontrollable stressors that can and do affect military marriages, and contribute to increased divorce rates.
Equitable distribution and financial issues
When a couple divorces in North Carolina, state statutes apply to determining a fair division of marital assets, alimony and child support, which includes a portion of the military member’s retirement pension.
Under The Uniformed Services Former Spouse Protection Act, a federal law, a spouse may receive an equitable share of his or her spouse’s military retirement regardless of length of marriage. If the parties were married for at least 10 years while the spouse served in a branch of the military, then the Department of Defense can be required to make direct payments of the military pension to the former spouse.
In the event that any alimony or child support is to be paid by the service member, the Defense Finance and Accounting Service (DFAS) must be provided with the order setting forth the payment terms and instructing the government to make payment to the spouse.
Former military spouses who have chosen not to remarry may receive other financial benefits after the divorce under The Uniformed Services Former Spouse Protection Act. The former spouse may receive Tricare health benefits, and privileges to access the commissary, exchange, theater, and other benefits provided he or she meets the qualifications under the 20/20/20 rule.
Custody and visitation considerations
Typical North Carolina family law rules apply to every custody and visitation claim; however, the state recognizes that a military parent shouldn’t be penalized for lacking control over mandatory job requirements such as deployments or relocating to another duty station.
In custody determinations when the minor child’s parent is a service member, past or potential future deployments may be considered when weighing what is in the best interest of the child, but that cannot be the only determining factor. Relocation of a parent who is given primary custody can place a hardship on the parent who receives visitation if the move is to another state, or especially to another country. Distant moves can be logistically challenging and cost prohibitive. If the parent who relocates is awarded primary custody he or she may be required to pay a portion, or all of the travel expense for the other parent to exercise visitation.
The military requires single parent military members to have a family care plan on file, and while this document has no power to alter a court order as to custody or visitation, it can help position the service member to establish custody and visitation. Family care plans set out who will care for the service member’s dependents while he or she is unable to do so due to mission requirements. Criteria for family care plans include:
- Proof that guardians have been educated about their responsibilities as a care provider.
- Confirmation that the guardians were provided all legal documentation to provide care.
- Proof that the service member obtained consent from the guardian(s) to provide care, which may be done through obtaining a Power of Attorney.
Family care plans can assist a service member in persuading the court that he or she has thought about the child’s best interests by creating a contingency plan to care for his or her child in the event of deployment or another required absence.
Servicemembers Civil Relief Act
Given the rigid requirements of serving in the armed forces, protections are afforded to service members under the federal law known as the Servicemembers Civil Relief Act. To help military members remain focused on their missions, an automatic 90-day stay of court proceedings may be obtained upon written request if your “service materially affects your ability to proceed in the case.” This law applies to family court actions but delay beyond 90 days is at the discretion of the family court judge.
The caring Charlotte family law attorneys at Epperson Law Group, PLLC will stand by you and fight for your right in your military divorce. We understand the pitfalls that military service can cause and how to best maneuver you through them to put you into the best position possible coming out of your marriage. To schedule a consultation in the Charlotte, Boone and Weddington areas, call 704-321-0031 or we invite you to reach out to us through our contact page.