Whether or not you are a service member, spouse of a service member, or a civilian, the legal system in Florida treats you the same. There are no special courts or procedures for military couples. Every party that seeks a divorce must file a Dissolution of Marriage action in a court of proper jurisdiction.
However, once filed, military couples face several additional unique issues. These include jurisdiction, service of process, valuation and distribution of military pension, Survivors Benefit Plan, Thrift Savings Plan, Medical/Health Benefits, and Base privileges, among others.
With this in mind, over the course of the next few weeks I will be posting several brief discussions related to those unique issues faced by a military service member and their spouse during a divorce.
Jurisdiction/Service of Process
By statute, Florida requires a party to be a resident for a minimum of 6 months prior to filing. However, Florida statute also provides military members and their spouse who are stationed in Florida a presumption of being a prima facie (de facto) resident of Florida for the purpose of maintaining a divorce action. Florida courts may also accept jurisdiction over a divorce action in Florida if the military member who previously lived in Florida is stationed outside of the State due to duty requirements, but still considers Florida to be his/her state of residence. Ultimately, jurisdiction is a question of fact for the Court to determine and should be discussed thoroughly with counsel. This is called ‘subject matter jurisdiction.’ This is not something that can be waived.
Just like in a civilian divorce, the servicemember or spouse must be served personally with the summons and a copy of the divorce documents in order for there to be jurisdiction over the case in a Florida court. In an uncontested divorce, formal service of process by a process server is not necessary because generally you and your spouse have agreed how to resolve all issues and will cooperate to file all required documents.
In a contested divorce case, service of process is required. A person authorized to deliver legal documents must do so in accordance with the laws of the state of Florida, even if the person to be served is living out of state. If trying to serve the servicemember on base, military authorities will generally make the servicemember available for service of process, however, it depends upon the installation and is not required. If the military member is overseas and is not willing to accept service then service in accordance with the regulations of the country where the member is located; foreign service is too complicated to discuss in depth in this blog.
Military Retirement Pay/Pension
The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows states to treat military “disposable retired pay” (monthly retired pay minus qualified deductions) as marital property. Florida law allows for the pension to be treated as property instead of income. As such, it can be considered a marital asset for purposes of equitable distribution.
The value of marital assets (military pension in this case) are generally determined as of the date of filing of the Petition for Dissolution of Marriage. However, the parties may agree on a different date for determining the value of the military pension. The judge may also determine the date of valuation based upon what he/she believes is just and equitable under the circumstances.
Once the military pension has a set value, the Court or the parties by agreement, determine how the pension will be divided among the spouses. Any Court Order will set a dollar amount or a percentage of the pension the spouse will receive. The receiving spouse may also receive his/her share of “cost of living” increases in retired pay but only if a percentage value is used in the court order.
Division of a military pension is not as cut and dry as applying a standard mathematic formula. Many variables can be considered by the Court such as the assumption of marital debt by one party or a lengthy separation of the parties prior to the filing of the Petition. In some cases, this can lead a Court to unequally distribute the pension benefits. Notwithstanding this power of the Courts, regulations by the Department of Defense concerning division of military retired pay state that the maximum amount a former spouse can receive is fifty percent (50%) of the military member’s disposable retired pay (this award does not include child support or spousal support amounts).
After a value is set and the division between the spouses is determined, a court order will specify the amount or percentage of retired pay to be paid to the receiving spouse. If a couple was married for less than 10 years during the military member’s active service, the military member will be responsible for directly paying the spouse. If a couple was married for more than 10 years during the military member’s active service, the divorcing spouse should take advantage of the direct allotment provision USFSPA, which allows the Defense Finance and Accounting Service (DFAS) to take out the specific percentage/dollar amount of the disposable retired pay via involuntary allotment and award it to the spouse.
Regardless of a court order during the divorce proceeding, retired military pay stops upon the death of the military member. If the military pension is substantial, the divorcing spouse may consider insuring the retired pay. One way to insure a military pension is through a Survivor Benefit Plan.
