Protection for Military Service Members When Spouse Files for Divorce
Florida complies with a federal statute known as the Service Members Civil Relief Act of 2003. This law protects active duty military members when their spouse files for a divorce.
The filing spouse must sign an affidavit indicating whether or not their spouse in on active duty and it must be filed with the Court at the time of the filing of a divorce action.
If the filing spouse improperly states that the other party in not on active duty, when they really are, the filing party can be sanctioned by the Court and the case dismissed.
When the filing party indicates that the spouise is on active duty, then the protections offered by the Service Members Civil Relief Act of 2003 kick in.
The active duty spouse can request a pause in the divorce proceedings for up to a year after they return from active duty.
The act also provides that the service member and their spouse do not gain or lose their “residency status” based on their presence in a state, or foreign nation, while on active duty.
The more important issues that must be addressed during a divorce involving a current or former service member is the equitable distribution of their Military Pension and the Survivors Benefits Rights related to the military service.
Military pensions and Survivors Benefits Rights can be very complicated issues, because this issues are governed by federal law and not by the laws of the state in which the divorce is taking place.
It is important, whether you are the service member of their spouse, that you hire an attorney who understands the mydrid of additonal issues that are present in a military divorce.
For example, a LES is a Leave and Earnings Statement. This document is, essentially, the service members pay check stub. It contains a great deal of information about the pay level of the service member along with information about special pay, combat pay, aviation career incentive pay and variable special pay for medical and dental officers.
Equally imporatnt is the information the LES contains about nontaxable benefits such as the basic allowance for subsistnece and the basic housing allowance.
Unless your attorney properly understands the Service Members Civil Releif Act and how to properly interpret the information on the LES – a very expensive mistake could be made.
Be sure, hire an attorney who is an expert in marital law.
- Whether a member of the military can be compelled to appear in court
- What is the state of residence for the service member
- Of what state the spouse is considered a member when it comes to obtaining a divorce
Additionally, under the Soldiers and Sailors Civil Relief Act, if a spouse if on activity duty when he or she is served with a divorce petition, the entire divorce proceeding can be postponed for the time the member is on active duty – and 6o days thereafter – so that the member can be given time to respond to the petition.
The Appropriate Way to Serve an Active Military Spouse
In order to properly serve a spouse who is on active military duty, the spouse must be personally served with a summons and a copy of the divorce action so that a Florida court will have jurisdiction over the active military member.
It is worth noting that the active duty spouse may be able to waive the ability to have the divorce proceeding postponed until the service member is off of active duty; however, there are technicalities to this.
About Military Divorce
In order to obtain a military divorce in Florida, either spouse must reside in the state, and either spouse must be stationed in Florida. Civilian divorce provides the same grounds for military divorce.
Additionally, there are provisions in place that protect spouses when it comes to property division during a divorce. These provisions can be found in the Uniformed Services Former Spouses’ Protection Act, which governs how military retirement benefits are calculated and divided upon a divorce.
Under the law, no beneifts can be distributed to a spouse unless the spouse and military member have been married for at least 10 years while the member has been on active duty.
If you are in the military or married to someone who is, and are considering obtaining a divorce, there are many things you need to consider. Hiring a family law attorney experienced in military divorce is important in ensure that your divorce goes smoothly.
Our attorneys at the Law Firm for Family Law have years of experience handling military divorces. We know the intricacies of the law and handle each client’ s case with compassion and care.
For an initial consultation, we welcome your call to our office at (727) 531-8737.