Tag Archive for: military divorce

Military Obligations Impact Some Pennsylvania Parents’ Child Custody

The extended military presence the U.S. has had in Iraq and Afghanistan has tested society in a number of ways. Many people feel the strain of having loved ones overseas for lengthy military tours. Those who serve their country also face a number of struggles. Marriages often crumble when one or both spouses are in the military, and service members face unique issues when it comes to child custody. A panel of lawyers is recommending a uniform set of laws to address custody issues for military parents. Pennsylvania has been a leader in this area, as its laws already give military parents broad protections regarding child custody.

PROBLEMS FOR MILITARY PARENTS

Across the country, state courts have been called on more frequently to address issues of child custody where parents are in the military. However, there is no consistency in the decisions, and often military parents can fall through the cracks when cases cross state lines.

One of the biggest problems that arise in military custody cases is determining who has jurisdiction over the matter. In typical custody battles, when one parent moves it is a voluntary action. However, those in the military get orders to go to different bases in the U.S. or serve tours overseas. If a non-military spouse also leaves the state in which the two used to reside, then that state may be divested of jurisdiction over the custody matter – even if the military parent still considers that state home and had resided there for some time with his or her child.

Other issues with which courts struggle include whether third parties such as step-parents or grandparents get visitation rights when military parents are deployed and whether temporary custody arrangements that were in place during a deployment should automatically become permanent.

Many service members say that state courts are unfamiliar with the protections that the Servicemembers Civil Relief Act provides in family law matters and their rights are ignored because they are absent for many of the proceedings – not by their choice.

UNIFORM CUSTODY LAWS

A group of attorneys appointed by each of the states, called the Uniform Law Commission, is working to address some of the problems that military parents face in divorce. They have drafted and given final approval to the Deployed Parents Custody and Visitation Act, a model set of laws that states can adopt to standardize military custody laws across the county. The group studied laws nationwide and adopted what it determined are the best practices from all the states to create a comprehensive way to address military custody issues. Members of the Commission plan to begin lobbying various state legislatures to adopt the Act next year.

PENNSYLVANIA’S LAWS ON CUSTODY

Pennsylvania has already passed laws regarding military parents and child custody. Since 2008, Pennsylvania law has specifically stated that:

  • Custody cannot change while a parent is deployed
  • Custody rights are reinstated when a parent returns from deployment
  • Deployment is not considered when determining a child’s best interests
  • Failure to appear at a hearing due to deployment cannot be a sole reason for modifying a custody arrangement

In April 2012, the state enacted legislation to allow military parents to assign their custody rights to family members during deployment, as well as the right to expedited or electronic hearings if deployment requires.

Child custody matters are often complex and when parents are in the military the situations can become even more complicated. Military parents who have child custody issues should not try to handle these matters alone, but should seek counsel from an attorney with substantial experience in military child custody matters.

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Changes to Military Retirement Benefits

Retirement benefits can be a substantial asset up for division in the context of a divorce action. The same is true in the case of military retirement benefits. There is a certain time requirement for service in order to be eligible for military retirement. Once this threshold is reached, a spouse is then entitled to their share of the military retirement benefits no matter how insignificant. Under the ten year rule, where the parties have been married for 10 years and the service member has accumulated 10 years of service, DFAS (Defense Finance and Accounting Services) can pay the spouse directly. When the ten year rule has not been met, the spouse can still receive a portion of the military retirement benefits however the service member will be responsible to pay the spouse themselves. A court can only award a division of a military pension if it has jurisdiction over the service member via residence, domicile or consent.

As of January 2018, the framework for military retirement benefits is changing. All new service members will automatically be enrolled into the blended retirement system which is a combination of the traditional military pension as well as a Thrift Savings Plan. Members with up to twelve years of service can elect to switch to the new blended retirement system. There is a new continuation pay option between years eight and twelve of service contingent on an additional three years of service and a new lump sum payment option. The new rules will also freeze members pay grade as of the time of divorce for use in calculating the marital portion of the pension. This will have the effect of reducing the share to the spouse.

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Division of Military Benefits

A spouse is entitled to their share of the military pension no matter how insignificant. Under the 10 year rule, where the parties have been married for 10 years and the servicemember has accumulated 10 years of service, DFAS (Defense Finance and Accounting Services) can pay the spouse directly. When the 10 year rule has not been met the servicemember will be responsible to pay the spouse themselves. This, of course, makes it harder to enforce the distribution of the pension. A court can only award a division of a military pension if it has jurisdiction over the servicemember via residence, domicile or consent. Only disposable retired pay can be divided. This is the total monthly pay less certain deductions. The highest percentage a spouse can receive of the military retired pay is 50%. The spouse will stop receiving military pay when the service-member dies.

In order to continue to receive benefits after the death of the servicemember, a Survivor Benefit Plan (SBP) must be in place. The plan is available if both parties elect it and pay the required premium. It will allow the spouse to continue to receive retired pay post-death of the servicemember. The surviving spouse is entitled to 55% of the retired pay received by the retiree. To ensure the spouse receives the SBP as a former spouse, you must complete a deemed election specifying that the spouse will be named as a former spouse under the SBP within one year of the dissolution of the marriage.

Click here to read more on Military Divorce.

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