Special federal and state laws add complex issues to a military divorce that don’t exist in a civilian proceeding. In most cases, representation by a lawyer who knows military divorce law is essential to protecting the rights of a divorcing military member or spouse.
Division of marital property, including a military pension, access to military benefits, base housing, custody and parenting rights, and spousal support are among the key factors affected by military-specific laws and regulations. Whether you are a military member or spouse, understanding the special rules that apply in advance is the best way to avoid unpleasant surprises in the course of a divorce proceeding.
Military spouses receive a wide range of benefits and privileges, including medical care, commissary and exchange shopping privileges, housing, and use of base facilities. In many cases, a divorced spouse of a military member loses all those privileges after the divorce is finalized. However, dependent children usually keep most benefits after a divorce, regardless of which parent has primary custody.
One important exception to the benefit rule, available under the Uniformed Services Former Spouse’s Protection Act, applies to former military spouses who have not remarried. If the marriage lasted for at least 20 years, and the military member performed at least 20 years of retirement creditable service during the marriage, the former spouse may be able to retain their military ID card, receive full commissary and exchange privileges, and be eligible for medical treatment in military facilities on a space available basis.
Under the exception, a former spouse also may be eligible for medical coverage if they do not have coverage under an employer-sponsored health plan. However, a former spouse over age 65 is not eligible for medical care unless the Social Security Administration issues a letter of disallowance for Medicare Part A. Some transitional medical benefits may be available if there is at least 15 years of retirement creditable service overlap. The medical coverage rules illustrate well the complexity of issues in a military divorce.
Since the military views divorce as a proceeding governed primarily by state law, Nevada community property laws apply to the division of marital property in a Nevada military divorce proceeding. For pension or retirement assets, that means division of benefits accrued during the marriage.
Nevada community property laws generally result in equal division of property and assets in a divorce. However, the spouses may negotiate a different division if they enter into a property settlement agreement. If the spouses cannot agree and the court makes the distribution, the judge has authority to order an unequal distribution in some circumstances.
Pension and retirement accounts present difficult community property issues in any divorce proceeding. They create especially complex issues in a military divorce. In addition to state law considerations that affect division of military pension benefits, a specific federal law governs division and payment of retirement benefits in a military divorce.
As noted earlier, a federal law named the Uniformed Services Former Spouse’s Protection Act may affect a former military spouse’s benefit entitlements following divorce. The same law recognizes the authority of state courts to distribute military retirement pay as part of community property under state law. It also contains provisions relating to division and payment of military retirement benefits.
The USFSPA was enacted to protect financial rights of military dependent spouses in a divorce, but does not create automatic entitlement to retirement pay of a military member based on length of the marriage or years of service. It does, however, affect whether a former spouse of a retired military member can receive direct payment of a portion of the retirement pay through involuntary allotment. Stringent requirements apply for a former spouse to be entitled to direct payment. The USFSPA also limits direct payments to 50% of disposable retirement pay.
Navigating through the laws governing division and payment of military retirement benefits requires assistance from a lawyer with experience in Nevada military divorces. A military member or spouse should not attempt to negotiate or navigate the legal requirements — especially those relating to division of pension benefits — without help from knowledgeable legal counsel.
Military benefits and retirement pay division are not the only difficult issues in a military divorce. Entitlement and payment of spousal support (alimony) and child custody and support issues also can be affected by both federal and state laws and regulations. Depending on the specific circumstances, the divorcing spouses may need to address other complicated issues as well.
If you are a military member or spouse considering filing for divorce in Nevada, Las Vegas family law attorney Joseph Gersten is here to help. He draws on his extensive experience in domestic matters, including military divorce and family issues, to protect your rights and interests and pursue cost-effective resolution of all issues.
Attorney Joseph Gersten works with clients in Las Vegas, Henderson, and elsewhere in Clark County. Your initial consultation is always free-of-charge at The Gersten Law Firm. Call 702.857.8777 or complete our online form to schedule an appointment.