Divorce can be a confusing, complicated, and stressful time for military couples. However, gaining a general understanding of how this process works, while seeking to identify the specific issues that may apply in your case, can greatly reduce the time, expense, and emotional strain of a divorce. While you will largely follow the same process and procedures as a civilian couple when filing for divorce, there are unique legal issues which may apply result of military service. These issues may include determining the custody of children, calculating child and spousal support, and determining if any post-divorce benefits apply.
While divorce is largely governed by state law and local procedures, depending on where you file, there are certain federal statutes and military regulations which may be applicable to your divorce. Examples include the Uniformed Services Former Spouses' Protection Act, which can affect how disposable military retired pay is divided between the service member and former spouse, as well as determining eligibility for continued medical, commissary, installation exchange, and other benefits.
Generally, the military views divorce as a private civil matter to be addressed by a civilian court. Commanders rarely get involved in domestic situations except in limited cases, such as a claim by a dependent that he or she is being denied adequate financial support by the service member spouse. Even in such cases, a commander's authority is limited, absent a civilian court order.
Service members and their spouses have access to military legal assistance services at no cost through the installation legal assistance offices. In a divorce or family law matter, a service member and dependent spouse will need separate legal assistance attorneys to advise them to ensure both parties receive independent, candid and confidential advice, and to be sure there is no conflict of interest in the representation of both parties. Communications between a client and a legal assistance attorney are private, confidential and are generally covered by the attorney-client privilege. While military legal assistance attorneys may not be able to draft specific court documents or represent members or their families in court, they can provide helpful advice on a range of legal issues including divorce and child custody, income taxes, the Servicemembers Civil Relief Act and wills.
Legal assistance offices also provide notary services free of charge. For military divorce or legal separation situations that require representation in civil court or involve contested issues such as child custody, spousal/child support or division of assets like retirement pay, it is recommended that you consult with a civilian attorney who is knowledgeable of the divorce laws of your particular state and has extensive experience with military-related family law.
Servicemembers Civil Relief Act protections related to divorce proceedings
The Servicemembers Civil Relief Act helps protect service members' legal rights when called to active duty. It applies to active-duty members of the regular forces, members of the National Guard when serving in an active-duty status under federal orders, members of the reserve called to active duty and members of the Armed Services, National Oceanic and Atmospheric Administration, Public Health and the Coast Guard serving on active duty in support of the armed forces.
In regard to divorce proceedings, service members may obtain a "stay" or postponement of a civil court or administrative proceedings if they can show their military service prevents them from either asserting or protecting a legal right such as an upcoming deployment. This is not an automatic right, and a military judge must find there good cause to do so, based on the justification provided by the military member.
The Servicemembers Civil Relief Act also provides certain protections for members regarding default judgments for failure to respond to a lawsuit or failure to appear at trial. Before a court can enter a default judgment against a military member, the person suing the member must provide the court with an affidavit stating the defendant is not in the military. If the defendant is in the military, the court will appoint an attorney to represent the defendant's interests (usually by seeking a delay of proceedings). If a default judgment is entered against a service member, the judgment may be reopened if the member makes an application within 90 days after leaving active duty, shows he/she was prejudiced and shows he/she had a legal defense.
The impact of a divorce on children's eligibility for medical benefits through TRICAREBiological and adopted children of the service member remain eligible for TRICARE up to age 21 (or age 23 if enrolled in college) as long as the child remains a dependent child of the service member. Dependent children of the service member over the age of 21 (or 23 if enrolled in college) are eligible to purchase coverage through TRICARE Young Adult up to age 26. Stepchildren who were not adopted by the service member lose their TRICARE eligibility once DEERS is updated. Stepchildren may be eligible to purchase coverage under the Continued Health Care Benefit Program.
In addition to parenting issues and support, another topic to address as part a divorce is deciding who gets what; whether assets or debts. . Property covers both real property, such as your home, and personal property, such as household items or cars.
Florida courts divide a couple's assets in an ''equitable'' (fair) manner, called equitable distribution. Equitable is what is fair to both spouses, and fair may not mean equal.
Florida statute 61.075 gives the factors courts use in deciding what is "equitable." Factors include:
- a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
- (b) The economic circumstances of the parties.
- (c) The duration of the marriage.
- (d) Any interruption of personal careers or educational opportunities of either party.
- (e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
- (f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
- (g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
- (h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
- (i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
- (j) Any other factors necessary to do equity and justice between the parties.
Before deciding how marital property is to be shared, the Court must determine what property is marital and what is the non marital property of each spouse. Your attorney will work with you to identify what assets and debts are subject to distribution between you and your spouse.
Property Settlement Agreements
If you and your spouse can agree on how to divide your assets, whether it follows Florida’s guidelines or not, your lawyers will write up a formal agreement called a ''property settlement agreement" or a "marital settlement agreement" (MSA).. Detailed lists of who gets what are included in this agreement.
Often, a voluntary property settlement is preferred to having the court decide those issues. There's no way to predict or guarantee how a court will decide property division issues, so many couples prefer to work out a property settlement on their own.
The language of a settlement agreement is important- a poorly worded agreement may be unenforceable, and not worth the paper it’s written on. An attorney’s involvement in drafting and reviewing the agreement is vital to ensure that you get what you agree to. Do read the property settlement agreement carefully, and ask your lawyer about anything you don't understand. Once an agreement is signed and approved by the court, it's likely be difficult and expensive to change.
Taking a Property Inventory
Before you can negotiate aproperty settlement, you need to know what there is to divide. . One of your first tasks, even if you're thinking about a divorce, is to make a property inventory. It's vital to list all property you and your spouse own. Don't try to hide assets as it will only complicate dividing your property.
Property Transfer After the Divorce
As soon as the property settlement is approved or the court finalizes the divorce, you'll want to take care of the details of the property transfer. This includes preparing and signing the documents needed to transfer ownership.
While it may be the last thing you want to do, taking care of these details will save future trouble and make it easier to gain closure on this chapter of your life.
Restraining orders, often also called protection orders, are orders issued by judges that tell people to do or not do certain things. They can be used in non-criminal situations, such as telling property owners to stop activities that constitute a public nuisance and directing parties in a civil lawsuit to leave each other alone. Restraining orders in a civil context may also be called temporary injunctions (which can become permanent injunctions).
How Are Restraining Orders Issued?
In a typical situation, a victim applies to a judge for an order directing the aggressor to do a specific act, back off, or stay away. It is not uncommon for a party in a divorce or family law case to seek an injunction. The two cases are separate, but related, and having a qualified attorney who can handle both cases may save you time and money.
What does the applicant need to prove?
People who ask for restraining or protective orders need to convince the judge that they’re necessary to prevent continuing or imminent harm. In a domestic violence situation, for example, the victim (the petitioner) supplies a sworn statement alleging facts that support a claim of serious and/or imminent harm, which enables a judge to issue a temporary order then and there, without notice to the object of the order (the respondent). After the respondent receives notice and within a few days, the judge will hold a hearing to determine whether to make the restraining order final.
At the hearing, the plaintiff must prove the truth of the allegations (by a preponderance of the evidence, not the stricter standard of beyond a reasonable doubt).
How long do protective orders last?
Most protective orders set a time limit on the duration of a final order (though extensions can be granted). But even final orders can be modified if either party asks the judge to do so (and if the judge agrees).
How Are Restraining Orders Enforced?An order directed at a domestic abuser or stalker is enforced by the police. A respondent who violates a protective order may be arrested.
Many people have been led to believe there is an advantage to filing a divorce complaint first. That's not the case.
The difference in being the party who files for divorce and being the party is who is served with divorce papers is negligible and one thing you needn't worry about.
- Many of them are suddenly facing a divorce they hadn't planned on.
- The flip side is that many Boomers have finally decided to go forward on the divorce they kept thinking about, but which they just couldn't face.
- And some couples in second or third marriages are also facing divorce as they pass 50 years of age.
Divorce Information – Petitions, Discovery, Settlement and Trial
Quattrone Family Law ensures every client has the divorce information and family law resources they need to understand the divorce process and know what to expect. A divorce does not need to be be a long process, and preparation is key in minimizing the length of your case.
Early in the process, parties may file motions for temporary orders to address any pressing issue that cannot wait until the end of the divorce.
But most parties make serious efforts to arrive at an acceptable temporary arrangement without going to court. Avoiding temporary orders will help keep down attorneys’ fees. Your attorney will assist in making the decision that is right for you.
Discovery is the process of gathering information that will build and strengthen your case at trial. During discovery, you will gather information about yourself for your attorney to present to the court.
But equally important is anticipating your opponent’s case. Winning a favorable judgment may meanthat you are prepared to deal with your spouse’s allegations.
You will very likely be required to attend mediation in your family law case. This is an opportunity for you and your spouse or other party to resolve your disputes and craft an agreement that meets your needs, instead of putting decisions about your life into the hands of a judge, who does not know you or your family well and may make decisions that are not favorable to you or your family. Your attorney will attend mediation with you and guide you through the process.
It is common for cases to settle, and most do. This may happen at mediation, on the day of the trial, or at any point in your case. . The settlement agreement has important advantages. A reasonable settlement agreement allows you and your spouse more control over your judgment. Many clients prefer to avoid the anxiety of wagering their lives on a judge’s decision.
Additionally, time and money considerations may lead to a settlement. Litigation can be expensive, and sometimes it is necessary; however, it is generally the last option for clients. If a fair and favorable settlement is possible, your attorney will work hard with you to reach it.
Finally, as tempting as it is, it is almost always a mistake to negotiate directly with your spouse without legal advice and guidance. Even in circumstances that the parties are on good terms and can have meaningful conversations, it is necessary to be informed of the law and your rights before making any agreement.
A pretrial conference is typically required and occurs in advance of trial. These conferences force the attorneys for both parties to discuss the merits and issues of the case, with the benefit of input from the judge.
Often, it is during pretrial conferences that both sides fully realize the emotional and financial expenses of a trial. Afterward, they may engage in negotiations more rationally.
The demeanor of the judge during these hearings is very important. He or she will likely encourage the parties to resolve their differences, if it all possible.
Although only a small percentage of all divorces go to trial, the odds vary depending on certain factors including salary level, length of marriage, substance abuse or mental health issues and comparable incomes of the parties. The length of your trial will depend on the time the court allocates and the number and complexity of issues to be decided. Your trial may last anywhere from a few hours to a few days.
The Petitioner presents evidence first by calling witnesses and presenting exhibits. Once the Petitioner “rests,” it is the Respondent’s turn to make his or her case. After both sides have rested, the Court may permit the Petitioner to present “rebuttal” testimony by responding to the Respondent’s evidence.
Although trial is a last resort, the attorney at Quattrone Family Law is an experienced trial attorney. You will be well prepared before entering the courthouse, and your attorney will strongly advocate for you and your best interests.
Divorce proceedings can unleash a torrent of emotions ranging from anger to anxiety to depression. But as difficult as this experience is, you cannot simply call in sick, because your (and your children’s) interests hinge on your ability to push through and make rational decisions. So you must work to separate grievances that are meaningfully related to your children’s welfare from those that are offensive to you personally, however grave.
Remember that you are not walking this path alone. Your attorney will be your key advisor, but many of the pivotal considerations are not within his or her province. Therefore, it is usually helpful to seek advice from others whose knowledge and judgment you respect, including a counselor.
Always talk to your attorney first. Friends and family may help, but they also might pour gasoline on the fire or provide well meaning, but poor, advice. Knowing when to tune in also means knowing when to tune out.