Written by Jonathan Breeden
When married couples in North Carolina make the difficult decision to divorce, they face issues such as property division, spousal support, and child custody. These matters are determined by North Carolina law. But if one of the spouses is a member of the military, additional considerations arise, and federal law may provide guidance and protections.
Because military divorces add a layer of complexity to the issues and legal proceedings, you should consult a military divorce lawyer at Breeden Law Office. Attorney Jonathan Breeden has years of experience with such situations, and can answer any questions you have about your situation.
If you are a member of the military, or if you are the spouse of a serviceman or servicewoman, you might ask the following questions if you’re considering ending your marriage:
In order to divorce in NC, you or your spouse must be a resident of the state for at least six months. In addition, you need to separate for at least one year, or be living apart for three consecutive years due to one spouse’s incurable insanity. For military personnel, the same criteria apply. Military members or their spouses must have resided or been stationed in North Carolina for at least six months prior to filing for divorce, and if a serviceman or servicewoman is on active duty, they must be served with a divorce complaint.
If you and your spouse can’t agree on how to split up your marital property, the court will divide it pursuant to an equitable division standard. Equitable division doesn’t mean equal, but rather what is fair given all the circumstances. Distribution of property in this manner is the same for military couples.
Yes, you may be awarded up to 50%of a military pension if you meet certain requirements pursuant to the Uniformed Services Former Spouses’ Protection Act (USFSPA). You are entitled to a portion of the military pension if you were married during time of active duty. In order for DFAS to pay you directly, a member and their former husband or wife must have been wed for 10 or more years. During this time, the military member must have performed at least 10 years of service. This requirement is called the 10/10 rule. If you do not qualify as a 10/10 spouse the military member will have to pay you each month the amount you are awarded from his/her pension once they start receiving it. Only the marital portion of the pension will be divided. This is the part that was earned during the marriage, prior to the separation.
Under North Carolina law, you don’t have to wait until your former military spouse retires to receive the value of your part of the pension. The present value of the pension can be traded against other property you were to receive.
Like the eligibility to receive a portion of a military pension, keeping other military benefits is dependent on factors outlined in the USFSPA. If you were married at least 20 years, there was at least 20 years of military service, there was 20 years of overlap between the two, and you have not re-married, you are eligible to maintain your military health care. This is referred to as the 20/20/20 rule.
If divorcing parents can’t agree on a mutually satisfactory custody arrangement that is in the best interests of their child, the court will do so based on factors found in North Carolina law. While issues a military parent may have such as deployments and frequent moves may be considered while drawing up a custody arrangement, those won’t automatically disqualify a servicemember from sharing custody.
Just like divorces that involve child support issues of non-military members, North Carolina law applies to military couples that decide to end their marriage. The court will use a child support calculator that considers parental income and other financial factors to calculate the support owed. Under the USFSPA, these court orders apply, and must be submitted to the Defense Finance and Accounting Service (DFSA), which will deduct child support from military wages and pay you directly.
Often, a non-military spouse who has been responsible for keeping the home running and raising children during long absences of the military spouse is unemployed or underemployed. Accordingly, the court could order spousal support. If spousal support is ordered, the USFSPA allows for the collection by DFSA, which will then pay you. Support typically starts 30 days after receipt of the order by DFSA.
Visitation arrangements in any divorce can be complex, but with a parent in the military, it can be more challenging given the demands on servicemembers. There are scheduled times of deployment, emergency call-ups, and frequent moves. An experienced military divorce lawyer can work through these scenarios and fashion a shared parenting and/or visitation schedule that keeps a military parent in a child’s life. There may be a virtual visit schedule for times when physical visitation is not available. To keep family ties to a military parent strong, you can agree to allow the child to visit with your former spouse’s family.
Your attorney will ensure practical considerations are addressed, such as who is responsible for transportation to and from visitation, and who pays for transportation expenses. Depending on a child’s age, visitation schedules must work around school and activity schedules, which may conflict with the availability of a military parent.
In North Carolina, an award of child and spousal support should not exceed 60% of a military member’s pay and allowances. Federal law allows up to 65% of a military member’s disposable income to be collected to satisfy spousal support, child support, and division of a military pension.
If you are considering divorce that involves a spouse in the military, you need an attorney who is skilled in handling these matters. Jonathan Breeden has several years of experience as a military divorce lawyer. He can help guide you through this painful time and make sure you receive the property settlement and support orders you deserve. Contact Breeden Law Office at (919) 661-4970 today for an appointment to discuss your case.