Tampa Military Divorce Lawyer
Every step in a divorce is more complicated when one or both spouses is an active duty military servicemember. If your case involves military issues, you should consider consulting an experienced divorce attorney to advise you on these issues.
Military divorces frequently raise complex jurisdictional questions. Military servicemembers stationed in Florida call another state "home." Conversely, many Florida residents are stationed elsewhere as a result of their military commitment. Regardless of where the servicemember legally resides, issues concerning children are usually resolved in the state where the children have lived for the past six months.
Florida has special rules governing jurisdiction in a divorce case. You should hire an attorney who is familiar with these special rules. You do not want to pay for your attorney to have to learn them for the first time. And you cannot afford the tactical downside of having your attorney file for divorce in the wrong jurisdiction.
Federal law provides protection for servicemembers who are on active duty. For example, a party cannot obtain a default judgment against a servicemember without the appointment of an attorney ad litem.
Even after a military divorce case is "off the ground," the servicemember may be deployed to a location where he or she cannot effectively participate in the case. Attorney-client communications are very difficult during a deployment overseas. A competent military divorce attorney will know how to have the case put on hold during this period. But it is critical to get certain documents from the servicemember's command before the unit deploys.
Every branch of the military has its own regulations concerning family support. These military regulations operate in the absence of an agreement or court order. Many practitioners do not even think of contacting the servicemember's chain of command to enforce a support obligation under the military regulations.
When the court is tasked with establishing child support or alimony, the military pay system also presents special issues. Money paid to servicemembers that is designated as "pay" is typically taxable. Examples include basic pay, combat pay, hazardous duty pay, and flight pay. Military "allowances" are typically tax free. Housing allowances, subsistence allowances, cost of living adjustments, disability pay, and per diem payments cause significant confusion, even among experienced judges and practitioners.
Does a per diem allowance or cost of living adjustment increase a servicemember's "income" for purposes of determining child support? It depends on whether these payments reduce the servicemember's cost of living. Your family law attorney has to understand all of these issues at the beginning of your case. Otherwise, you will have to pay your attorney to research the law. And, if your attorney doesn't do his or her homework, your rights may be compromised.
The division of the parties' marital assets is known in Florida as "equitable distribution." Your attorney must know how to divide a servicemember's right to military retirement pay. Most attorneys also have no idea that a servicemember's spouse is eligible for direct payment from the United States government if the spouse has 10 years of marriage overlapping with 10 years of active duty military service (this is known as the "10/10 rule"). The 10/10 Rule is measured from the date of marriage to the date that the final judgment is entered.
In many cases, the attorneys completely fail to perform a calculation to base the spouse's share of the retirement pay on the servicemember's average pay for the 36 months preceding the filing date. This is known as a "High 36" calculation. If the servicemember's attorney (or the supposed "QDRO expert") fails to perform this calculation, it could cost upwards of $100,000. If your attorneys is going to have a QDRO expert handle the division of military retired pay, will they even know how to secure your claim before turning it over to the expert? And, how much extra will you have to pay the expert to do what your attorney should have done for you?
A military divorce attorney should also understand whether the Survivor Benefit Plan is the best means to insure the spouse's interest in the service member's military retirement. Many attorneys also overlook certain assets. Is there a thrift savings plan? Did your attorney advise you that military "leave" is a marital asset that can be valued and taken into account in the equitable distribution scheme. If you are the servicemember, did your attorney mention that this "asset" is not subject to distribution if you have previously cashed in or sold back your leave?
Post 9-11 GI Bill
Disputes over benefits under the Post 9-11 GI Bill are increasing in military divorces. Congress HAS enacted a statute expressly stating that the Post 9-11 GI Bill is not subject to equitable distribution.
Even though it is not part of the "marital estate" or subject to equitable distribution, the Post 9-11 GI Bill can be tremendously useful in settling a military divorce case. Many servicemembers will voluntarily sign over their right to the GI Bill benefits in lieu of paying more alimony or dividing the military retirement.
If you or someone you care about is facing a military divorce or family law case, we can help. Please contact our office today.