For Florida to have jurisdiction over a divorce, either you or your spouse must have lived or been stationed in the state for at least the preceding six months. A member of the military stationed outside Florida may still be able to file for divorce in the state if they consider it to be their primary state of residence, which could be evidenced by such things as a state-issued driver’s license, voter registration, or ownership of property.
Before filing in any state, you should know whether it treats a military pension as marital property or as the separate property of the servicemember. In a Florida divorce, the pension earned during the duration of the marriage is marital property. Any pension earned during the time the couple wasn’t married is separate property. The marital portion will be considered in the equitable distribution of assets among the spouses. Moreover, the non-military spouse may be able to receive a share of the military spouse's pension even if they remarry.
The Servicemembers Civil Relief Act protects those stationed out of the jurisdiction of any legal or administrative proceeding from penalties related to their inability to appear in court. The Act allows the service member to request a stay so they can have additional time to respond to a legal matter, such as filing an answer to a divorce petition.
Although the initial stay is automatic, the granting of additional stays is up to the court. The logistics required for a service member stationed out of state or overseas are difficult, and it’s a critical reason for the service member to be represented by a Florida attorney with military divorce experience.
Spouses can agree on the division of the military pension and submit it to the court for approval. Otherwise, the court will determine the percentage awarded to the non-military spouse, using the 10/10 rule under the Uniformed Services Former Spouses’ Protection Act (USFSPA).
The overlap between the years of marriage and years of military service are the key factors here. You must have been married for at least 10 years and those 10 years must have overlapped with at least as many years of military service. Payments will be made to the nonmilitary spouse directly from the military pay center.
The USFSPA also allows non-military spouses who remain unmarried to retain eligibility for commissary, exchange, and medical benefits if they meet the requirements of the 20/20/20 rule. The marriage must have lasted 20 years or more, the service member must have completed at least 20 years of service, and the marriage and service must have overlapped for at least 20 years. There could be transitional benefits if the overlap was at least 15 years but fewer than 20.
Filing for divorce in another country could cause problems later, because the divorce and its terms may not be recognized in the U.S. The divorce should be filed in the state where one spouse can establish residency. The other option is to wait until the deployment ends and the spouses return to the U.S. In some cases, the cost for the non-military divorcing spouse and children to return to the U.S. may be paid for by the military.
Child custody issues become especially complicated when the service member is stationed abroad. The stateside parent without primary custody should be willing to take the children when the service member is unable to care for them. If the stateside parent has primary custody, the visitation schedule will need to accommodate the service member’s leave and provide for virtual visitation when not on leave.
A JAG officer can help a service member with legal paperwork, but the officer cannot represent the service member in the divorce. Reach out to a Florida family law attorney to represent you, and one who knows the complex issues unique to military divorce. It is the only way your best interests will be served, whether you are the service member or the non-military spouse. Furthermore, each spouse should be represented by their own attorney to avoid any conflict of interest.
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