Serving in the military is an honorable profession. Those who spend time in the armed forces are provided with several types of benefits, some of which can make a military divorce more complicated than a civilian divorce. If you or your spouse are a service-member, whether active duty or retired, be aware that certain state and federal rules may affect your divorce.
Serving Divorce Papers
The first step in any divorce case is serving your spouse with the divorce petition. In order to be served, your spouse must personally receive the papers, usually by hand delivery or through the use of a process server.
It can be difficult to serve people who are currently on active duty and serving either out of state or overseas. This is especially true for people serving in war zones. Even if a person was served with the initial paperwork, transfers or deployments can make it hard for that person to respond to motions in a timely manner or attend hearings.
Normally, when a person fails to respond to a legal document or fails to attend a hearing, that person can be found in default, and the motion or proceeding will be automatically decided against them. Because military members may not be able to respond, both state and federal laws allow the divorce case to be postponed. Under the Soldiers and Sailors Civil Relief Act, any lawsuit or legal proceeding against an active duty member of the armed forces can be postponed for the entire time a person is on duty, and for up to 60 days after his or her return.
If, however, the service-member is able to respond and wants the divorce case to continue, the service-member can waive his or her right to this postponement and allow the case to continue.
Military Pensions and Benefits
Any military pensions or other income that a service-member earns during the marriage is considered community property, like any other income. This means that the former spouse of the service-member would be entitled to part of that pension or retirement income even though it was earned in the armed forces.
Federal law does not provide for the division of retirement benefits unless a couple was married for ten years or more. These couples will automatically have the service-member’s benefits split up by the federal government. Regardless of the federal law, however, Washington law treats all income or benefits earned during the marriage as community property, and couples who were married for less than ten years will still have to split their benefits and income according to state law.
Child Support and Custody Issues
As noted above, an active duty service-member has to be served with any legal documentation, and has the right to postpone any case or proceeding until after active duty ends. This includes hearings on child support, child custody, or the termination of parental rights.
In addition, federal law states that any service-member cannot be ordered to pay more than 60% of his or her pay and allowances on either child support or spousal support. While Washington state guidelines will ultimately determine how much support a service-member will have to pay, the final number cannot be more than 60% of his or her income.
Divorce can be difficult even in the best of circumstances. If you or your spouse is a member of the armed forces, following all of the rules regarding military service can be complicated. At Ashby Law, our attorneys understand these rules and can help you and your former spouse work out a divorce agreement which fits your family’s changing needs.
For help with your situation, contact us today by calling 509-572-3700.