Military Divorce Lawyers Fighting For Your Rights
Military divorces usually take longer to resolve than civilian divorces because they involve different rules. Couples seeking a military divorce in South Carolina must follow all the legal requirements, otherwise a court may not be able to hear the case. The parties must also be aware that there are federal laws that affect military pay and benefits. If you or someone you love is an active or retired member of the armed forces, it is vital that you have a Military Divorce Attorney that understands the process. There are many differences that can have substantial effects, including the division of property and military pensions. Give us a call today to schedule your consultation. We handle the following military divorce issues:
- Military Asset and Property Division;
- Military Pension Division; and
- Military Child Support and Custody disputes.
Military Divorce Requirements
In order to bring a military divorce action in South Carolina, one of the spouses must legally reside in South Carolina, or be stationed in South Carolina. Ordinarily, either spouse must continuously reside in South Carolina for at least one year before seeking a divorce. However, if both spouses live in South Carolina, the residency requirement for military divorces can be reduced from one year to three months. A spouse that is stationed at a South Carolina Military Base for one year is considered a resident of this state, regardless of whether the spouse intends to remain in South Carolina or not.
Service Members Civil Relief Act
Under, the Service Members Civil Relief Act (SCRA), soldiers are protected from divorce proceedings to allow them to “devote their entire energy to the defense needs of the Nation.” The Act authorizes courts to delay legal proceedings for the time that a spouse is on active duty, and for 60 days following active duty. If the divorce proceeding is uncontested, the active duty spouse may waive his or her rights and allow a court to issue a final divorce decree. Regardless of the length of delay, there are military regulations that require military personnel to support their spouse and children.
Dividing Military Pensions
The grounds for military divorce are the same as the grounds for a civilian divorce. (LINK) However, when courts divide the marital estate, there is one significant exception. Military pensions are governed by the Uniformed Services Former Spouses’ Protection Act (USFSPA) 10 U.S.C. § 1408. The Act allows states to distribute military pensions to a former spouse, but does automatically award it. The USFSPA limits a state court’s award to no more than 50% of the “disposable retired pay,” and further prohibits any division of a military pension unless the parties were married for at least ten years during the active duty spouses.
The “10-10” test is a rule that results in garnishment of the pension. If the spouse has served in the military for at least 10 years and the parties were married for 10 years during the spouses’s military service, the Defense Finance and Accounting Service (DFAS) will divide the monthly pension and send the correct portion to each party. If the requirements for the 10-10 test are not satisfied, the Family Court can still divide the pension, but the spouse is responsible for making the monthly payments.
Typically, service members cannot receive military pension benefits until they serve in the armed forces for at least 20 years. When Family Courts divide a military pension, Judges calculate the soldier’s disposable retired pay after deducting advanced pay, forfeited amounts and fines, waivers, and deductions. Spouses can still be awarded part of a military pension even if they have not been married for 10 years.
How Courts Divide Military Pensions
Generally, there are three ways to divide a military pension: (1) Courts may award a percentage of the pension; (2) Courts may award an exact dollar amount from the pension; or (3) Courts can award money or other assets in lieu of a share of the military pension.
Courts will consider the following factors:
- Length of marriage,
- Length of service,
- Whether the spouse will remain in the military after the divorce,
- Cost of living adjustments,
- Gross retired pay vs. disposable retired pay,
- Whether there are disability payments, and
- Other factors as the court deems appropriate.
Typically, child support calculations are based on each spouse’s income, but its not as straightforward as civilian child support. Courts must take more into account when calculating military income including: base pay, housing allowance, meals, and hazard pay. There are federal regulations that set forth specific calculations, but they are sometimes different than the amount calculated under the South Carolina Child Support Guidelines. There is generally enough support ordered until such time as the spouses can appear in Family Court.
Call a Military Divorce Lawyer Today
Even if you and your spouse believe you both can work out a fair and equitable allocation, it is essential that you have competent representation for your military divorce. We understand what’s at stake, let our experience stand on your side. Call the Strom Law Firm, LLC today to schedule your consultation. 803-252-4800.