Archive for December, 2018

My Spouse Is In The Military, Is There A Special Procedure To File For Divorce?

Monday, December 17th, 2018

Although there is some overlap between military divorces and civilian divorces, the differences between them are distinct, and fall under the scope of matters regarding compliance with support payments, methods of service/process, residency, and relating filing requirements, or the division of military pensions. Jurisdiction is decided on by different rules as well; while the state the party resides in has jurisdiction in civilian cases, jurisdiction may be the place where the person holds legal residence, even if the service member is stationed somewhere else when it comes to a military divorce. However, most states will allow service members or their spouses to file for divorce, in the state in which they are stationed, regardless of whether or not they are legal residents of that state.

Similar to civilian retirement benefits, military pensions are subject to division, sometimes via equitable distribution, between spouses in a divorce proceeding. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA):

“State courts may treat military retirement pay as either sole or community property depending on the state.“

While the USFSPA doesn’t provide a formula for dividing the amount of retired pay, the amount is generally determined and awarded under the specific state laws. In addition, payment of the former spouse’s portion of the military retirement is paid straightaway by the Defense Finance and Accounting Service (DFAS) to the former spouse, only if there were at least 10 years of marriage that overlapped with 10 years of military service (known as the 10/10 rule).

In addition to military pension benefits, spouses of former military are also eligible to obtain full medical benefits, and exchange privileges after a military divorce, under the following scenarios:

  • The couple was married for 20 years or more;
  • The service member has performed at least 20 years of creditable service to retirement pay; and
  • There was at least a 20-year overlap of marriage and military service.

With regard to spousal and child support, the military is focused on ensuring a service member’s family support obligations after the divorce. A court also may require the providing spouse to maintain life insurance that would cover child or alimony support payments for an allotted period of time.

Can A Prenuptial Agreement Protect Future Earnings?

Monday, December 10th, 2018

A prenuptial agreement, or “prenup”, is a tool utilized by both parties to protect their individual rights, as well as obligations, in the event of a divorce. Moreover, prenups cover the distribution and handling of property, real and personal, marital and separate. For example, if one party owned a house prior to marriage, they are likely to include a provision stating:

  • Which party will the property be retained by,
  • Who will be responsible for the costs of maintenance of the property,
  • How money obtained either through the selling or leasing of the property will be distributed between the parties.

Another use for prenuptial agreements is to protect future earnings. Although a party may not have any significant assets before or during the marriage, it doesn’t necessarily mean that they don’t expect to acquire significant assets in the future. With a prenup, the spouse can pre-emptively protect any earnings from their professional career in the event of a divorce. A good example could also be someone who expects to inherit or take over a “family business” prior to getting married, and so this planning in advance negates a possibility of that ownership being in jeopardy.

In order for the prenup to protect your future earnings and potentially gained assets, the prenup should be drafted by an experienced attorney, who knows how to correctly articulate what you want protected and preserved in the event of a divorce. The last thing you would want is for a vague and unclear prenup to be drafted and agreed upon, only for the judge to interpret it differently than you had planned. The prenup must be in writing and signed by both parties. The enforceability of a prenup is decided upon by the court, so long as the agreement was signed by both parties voluntarily, and the prenup is considered fair to both parties, it will be enforced.

Can My Estranged Wife Petition The Court For Additional Child Support?

Friday, December 7th, 2018

Although child support payment is typically determined during the settlement process, there are instances where there is a modification that can be made post-divorce. The custodial parent, who is the parent receiving the child support, would have to file a petition with the court, to ask for a modification to the current child support order, which in this case is an increase in the amount paid.

The court will look for a significant “change in circumstance” in one or both of the parents’ lives, specifically one that would warrant a modification to the child support order. For instance, in a scenario where the custodial parent is seeking additional child support, the parent might cite the fact that the non-custodial parent has started to earn more money, and can now afford to pay more child support.

A change in income can also result in a modification, not only for an increase in support paid but in some cases a decrease. In some cases, the order might lead to a decrease in the amount paid monthly by the non-custodial parent if, for example, they lost their job. The resulting modification, in this case, would be a reduction in the amount the non-custodial parent has to pay.

Ultimately, a custodial parent can petition the Court for additional child support, and a non-custodial parent can seek a modification as well. In either scenario, to be awarded the modification they are seeking, they will have to show a significant change in circumstances in the child’s life or either parent’s life, financial or otherwise. Whatever the reason, it is the court’s decision to either accept or deny the modification.