As a result of our close proximity to Fort Campbell, the divorce attorneys 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 divorce, there are several additional factors which affect the outcome such a divorce. For instance, if the active-duty spouse is stationed in a remote area or overseas during the divorce process, 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 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 which 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 divorce attorney experienced in handling divorces of military personnel.
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 attorneys 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.
Our divorce attorneys at BATSON NOLAN, PLC 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 schedule meeting so we can provide you answers and solutions to your questions and concerns.