Experienced Clarksville Military Divorce Attorneys Ready To Serve You
As a result of our close proximity to Fort Campbell, the Clarksville military divorce lawyer of Batson Nolan PLC are very knowledgeable and experienced in handling divorces involving military personnel and their spouses. Although the procedures of a divorce involving active-duty military personnel are generally the same as a civilian one, there are several additional factors that affect the outcome. For instance, if the active-duty spouse is stationed in a remote area or overseas during, the lawsuit is likely to be delayed until the active duty spouse is no longer unavailable per his/her military service.
There can also be issues regarding the residency of the parties, and whether Tennessee is the correct jurisdiction for adjudication of the divorce and division of the marital assets. There are also separate federal jurisdictional requirements for addressing matters of child custody, visitation and child support, all of which must be considered in determining where and when to initiate a divorce involving active-duty members of the United States military.
The issue which raises the most attention is the division of military retirement. The Uniform Services Former Spouse’s Protection Act (USFSPA) is a federal statute that requires the military to accept state law and state judicial determinations of issues such as child support, spousal support and military retired pay/pension. USFSPA permits the courts of Tennessee to classify military retired pay as property, as opposed to income.
Military retired pay can be used for payment of child support and alimony as well as divided as property but there are collection limitations. The maximum amount of pension income (retirement pay) an ex-spouse can receive is 50% of the military retirement pay. If child support is also being taken from the retirement pension, the maximum combined amount that can be deducted from the disposable retired pay increases to 65%. Under Federal law, in order for DFAS to provide direct retirement payments to an ex-spouse, a couple must have been married a minimum of 10 years overlapping 10 years of military service. Otherwise, the obligor spouse will be required to independently forward payment of the portion of the retirement benefits awarded to the ex-spouse.
There are generally three (3) accepted methods of calculating the division of the military retirement pension, being:  net present value;  deferred distribution; or  reserve distribution. Determination of the proper method of calculation to be used to divide a military retirement pension is often difficult, and we urge you to consult with a skilled Clarksville military divorce attorney at Batson Nolan PLC today.
A matter of recent legal controversy is the issue of when the service member waives a portion of his/her retired pay to collect disability pay which in effect reduces the former spouse’s percentage of retirement pay previously awarded under the terms of the divorce. The U.S. Supreme Court recently held that state courts such as Tennessee could no longer require indemnification to the former spouse when the service member waives a portion of the service member’s retired pay to collect disability pay.
By definition, disability pay is not considered disposable retirement benefits. In the past, Tennessee courts have modified or increased a former spouse’s percentage of the service member’s disposable retirement pay to offset the loss of pension payments realized by the former spouse due to the service member converting a portion of his/her retirement pay to disability pay. Within the recent holding of the United States Supreme Court, such protections are no longer available under Tennessee law or any other state law.
Based upon the legal ripples realized from the recent U.S. Supreme Court opinion, our Clarksville military divorce attorney now advise our clients to approach issues of dividing the marital assets and issues of alimony with the understanding that it is probable that in the future the service member will likely waive or divert portions of the disposable retirement pay to disability pay thereby reducing a portion of the military retirement benefits the former spouse otherwise expects to receive per the terms of divorce. In other words, the dependent spouse is recommended to maximize his/her share the marital state now at the time of divorce, because service member’s disposable retirement benefits are contingent, and it is foreseeable that the former spouse’s overall portion of the service member’s disposable retirement benefits will very likely to be significantly reduced upon the service member’s retirement.
In addition to the foregoing, divorces involving military personnel also raise issues such as Thrift Savings Plans; Survivor Benefit Plans; base privileges for the former spouse; and access to TriCare.
Divorce of Military Couples Frequently Asked Questions (FAQs)
I have custody of my child and I just received PCS orders. Can I take my child with me?
Only if you meet the requirements of Tennessee’s parental relocation law – otherwise it could be considered kidnapping. These requirements include sending a registered or certified letter to the other parent that includes
- a statement of your intent to move;
- the location of your new residence;
- the reason why you are moving; and
- a statement advising the other parent of their right to contest the relocation by filing an opposition petition with the court within thirty days of receiving your notice.
The court will probably allow the relocation if your spouse doesn’t object. If an opposition is filed, however, things can get a lot more complicated.
Can I contact the military if my ex refuses to pay child support?
Yes. You can file a complaint with your ex-spouse’s commanding officer, and the commanding officer will take up the issue with a military lawyer. The military can demand that your ex-spouse meet his legal obligations, and they can discipline him even to the point of filing criminal charges against him.
How might an adultery allegation affect my ex’s military career?
Members of the military are subject to the Uniform Code of Military Justice, which imposes requirements that are in many ways stricter than civilian laws. A proven adultery allegation could result in a reduction in rank and other possible penalties. Remember, however, that negative occupational consequences could result in your ex-spouse having less money to meet child support and alimony obligations.
What happens if my military duties interfere with my parenting time?
If this happens, is important that you continue making every effort to keep in touch with your children by any means available, including telephone calls, text messaging, and Internet applications such as Skype. Failure to do so could be interpreted as a lack of interest. This could work against you if, for example, you seek a modification of custody arrangements at some time in the future.
Remember that the family court will probably expect your ex-spouse to cooperate with your efforts by, for example, setting aside a time for your children to connect with you on Skype. Remember that, as long as your Permanent Parenting Plan is flexible enough, the missed time can be made up.
My spouse is stationed overseas. Can I file for divorce?
Yes, you can – although the process can get tricky. One of the greatest challenges will be serving the divorce papers overseas in a manner that complies with international treaty. You might also have trouble locating your spouse’s exact address. If your spouse is uncooperative, you may also face delays getting him into court. This is because Tennessee law makes certain accommodations for service members who are stationed out of state.
Can an active duty service member be awarded child custody?
Yes. The Tennessee version of the Uniform Deployed Parents Custody and Visitation Act prevents a family court from denying custody solely on the basis of possible future deployments. A court can, however, take the possibility of future deployments, out of state or abroad, into consideration, to the extent that a possible future deployment might affect the best interests of the child.
Is Basic Allowance for Housing considered income for child support purposes?
The Tennessee Child Support Guidelines classify the Basic Allowance for Housing as a “fringe benefit.” This means that it is treated as income for the purposes of calculating child support payments. Although the strict observance of this rule sometimes results in unfairly calculating high child support obligations, they are only guidelines and a court can deviate from them if there is a good reason to. A skilled divorce law firm is likely to be a great help in this situation.
How Does Property Get Divided If My Spouse and I Cannot Agree?
Typically, in community property states, all property acquired during the marriage is split 50/50. However, Tennessee is not a community property state, it is what is referred to as an “equitable distribution” state. Therefore, it will be up to the judge to decide who gets what in the division of marital assets. In order to determine this, the judge will look at many factors.
For instance, a judge can consider:
- The length of the marriage
- Each partner’s contributions to the marriage both financially and in child-rearing etc.,
- The amount of retirement and social security benefits available to each party
One thing that is not considered when equitably distributing assets is Fault.
What Is Not Considered Marital Property in Tennessee?
As stated, not all property acquired during a marriage is considered marital property in Tennessee. For example, anything acquired by either spouse prior to the marriage is not marital property – that is pretty self-explanatory. However, did you know that if you sell or exchange property that you had prior to going into the marriage, then the proceeds of the sale or the property for which you exchanged it are not considered marital property either?
Also, if there are capital gains that are achieved from the pre-marital property, those gains are not marital property either. For example, if the wife owned a rental property in her name prior to the marriage and that property has appreciated by $50,000, then that appreciation value is hers alone, not a marital asset.
Our military divorce attorneys have the legal knowledge and experience to help you understand your rights as a member of the Armed Forces, and your rights as a military dependent. Contact us today to speak with a Clarksville Military Divorce Lawyer. Schedule a meeting so we can provide you answers and solutions to your questions and concerns.