Divorce in New Mexico can get complicated under the best of circumstances, and if one or both spouses are members of the Armed Forces, it can be even more complex. If you or your spouse are divorcing and one or both of you is in the military, it’s important to seek legal advice from an experienced military divorce attorney to ensure a fair outcome for your case. There are many legal issues that can crop up during such a divorce proceeding, including those involving jurisdiction, child custody, retirement benefits and whether payments can come directly from the Defense Finance and Accounting Service (DFAS).
Military retirement pay and survivor benefits
There is more than one way of calculating the amount of military retirement benefits to which an ex-spouse is entitled, including the present net value of the retirement benefits. Another issue is reserve jurisdiction, which means the ex-spouse’s share is calculated when the military spouse officially retires. While this is the most common way to go, it’s still worth discussing what you want to do before you make a decision. If, for example, it’s possible for the military spouse to buy out the civilian spouse before he or she retires, that may be the right way for the parties involved to go. Whatever is decided when it comes to military retirement pay, however, must be spelled out in the divorce decree, and you should have a court order that divides the pension according to what was decided and the proper forms filed with DFAS.
Survivor benefits are another area of military divorces that can cause significant problems. Civilian spouses sometimes believe that if they were the beneficiary of this benefit while they were married, they stay the beneficiary upon divorce. However, this is not the case. The survivor benefit must be addressed as part of the divorce settlement, with other official documents following within a year of the final divorce.
Post-divorce base privileges and TRICARE
A civilian ex-spouse of a military member may still have eligibility for some base privileges, such as the commissary and exchange. To receive those privileges, the ex-spouse has to qualify under what is known as the “20/20/20 rule”. All three of the following requirements must be met:
• The marriage lasted at least 20 years
• The military spouse served at least 20 years
• The time in service and the duration of the marriage overlap for at least 20 years
If the civilian spouse meets all of the 20/20/20 rule, he or she is entitled to the base privileges as long as he or she doesn’t get married again. The same rules and eligibility requirements for this privilege also apply to the health benefits from TRICARE.
If you have children, custody can be a complex issue even if no one is in the military, and it becomes more complicated if one parent is in the service. Visitation and custody decisions are impacted by the chance of a military member being deployed or stationed in different places. Working with an experienced military divorce attorney can help with this area, as he or she will be able to point out potential problems and situations so you and the other parent can craft a truly comprehensive parenting plan.
If you’re a military member or your spouse is and you are thinking about or are ready to divorce, talk to an experienced military divorce attorney as soon as you can about your case. By being prepared from the start and having someone with legal knowledge by your side, you have a better chance of taking some of the stress and confusion out of your divorce.