If you are a military member or military spouse contemplating divorce, you may be wondering how divorce works in the military, how military benefits are divided and addressed by state and federal courts, and what each spouse is entitled to as it relates to benefits. Continue reading for answers to your questions and a brief overview of military divorce in Washington state.
Frequently Asked Questions About Military Divorce
We sat down with our Tacoma attorney, Robert Howell, to discuss how military divorces and the subsequent division of assets is handled in Washington state.
Is There a Residency Requirement to File for a Military Divorce in Washington?
“That's one of the ways that Washington is kind of neat. It does not require any particular term of residency, just that you live here, and that the parties are in the state when the action is filed,” says Howell. “A lot of times, military service members hold residency in the state that they were born in. My own father was born in Ohio, and throughout his military career, he maintained his residency in Ohio. But even with that, if they're stationed here, or are here for some other reason, the court can obtain jurisdiction over [their divorce].”
What Does the Process Look Like to Serve a Military Member Divorce Papers?
“More often than not, if you need to serve somebody and they work on the base, then you need to arrange it with the base commander, either directly through their office, or through the legal assistance office on the base,” explains Howell. “The person who is going to serve [the papers] will go to the base, and their name will be on the list at the gate. They get to go in, and they will go to the base commanders of the JAG office, where the party is called in and then they can be served right there. The military is usually very cooperative, but it can be a little bit daunting for people who've never had to deal with going on a military installation.”
Does This Process Change at All If the Military Member Is Deployed?
“If the military party is deployed, you cannot start a proceeding for divorce, as long as they're deployed. You can't serve them at all, because their destination, where they are supposed to be, is secret. And so, the Soldier and Sailors Relief Act specifically says that a member of the military, any service, cannot be served with divorce papers while they're deployed.”
How Are Military Benefits Addressed for Each Party? | Understanding the 10/10 Rule
“People often go by what they call the 10/10 rule, which is that you have to have been married for 10 years and the person has to be in the military for 10 years before you can obtain any of their benefits or retirement. That's not really true anymore. Particularly, in 2017, through the National Defense Authorization Act, Congress revised the law from what used to be known as a ‘time rule’, and what's now called the ‘frozen benefit rule’,” explains Howell. “Frozen benefit rule simply means that at the time of the divorce, the retirement benefit to the other spouse is going to be based on the service member's time in the military and their rank, and is supposed to freeze at the time of the divorce. So it's very important that once the order is written, the divorce gets finalized so that the Defense Department of Pay gets an order that's correct at that time, and you don't have to go back and modify it because things didn't get finalized.”
Are There Limits to How Retirement Benefits Are Divided between the Two Parties?
“The non-military party cannot get more than 50% [of retirement benefits], but there are other ways the court can offset a division that they feel would be more equitable, which could be through spousal support,” says Howell. “What also happens a lot is retirement benefits get modified, because the military member qualifies for a disability, and the disability reduces their retirement. Suddenly, the former spouse is getting less money because less money is being paid out from the pension fund. There's some debate too, as to whether the order should be a dollar amount or percentage. I, myself, prefer a percentage because if the payout to the military person is going to increase over time, say because they get a cost-of-living adjustment every year, rather than lock your client into an amount that's kind of going to be forever, you give them a percentage. This way, they will always get that 50%, no matter what happens to the pay of the military person.”
Military Divorce & Remarriage | How Can a Military Member’s Previous Marriages Impact the Division of Benefits?
“It’s going to depend upon how long the marriage was because that also factors into how much of the retirement you're entitled to. If you're there for the entire time [that they served], you're going to get that 50%. If you're there in the marriage for only five years, although the state of Washington still allows the division of retirement paid, they're going to base it on that fact that you were only present for five years of this person's service, so you may get 10% of their retirement pay. No matter what, the federal law really prohibits any taking over 50%. So even if there are multiple parties, the court is going to have to be cognizant of the fact that they still can't take more than 50% of the pay.”
How Are Benefits Outside of Retirement Addressed, Such as Base Benefits?
“Anytime you have the former spouse of a retired military person, more often than not, if the military member put in 20 years, their former spouse is entitled to all the base privileges. They can keep their ID card, which gets them onto the base, they can use the base commissary, and they can use the base medical facilities,” explains Howell. “They can continue to enjoy the privileges of on-base commissary, which, frankly, is pretty significant, because you're not paying taxes for any of that. So it'd be a pretty significant advantage to have that. And certainly, you want to make sure that in a long-term marriage, the former spouse is getting those privileges retained.”
Military divorces can be complex, and it’s imperative that you have an attorney who is familiar with how state and federal laws tie into the process so that an agreeable outcome is reached. To speak with Robert Howell further about your military divorce, call our office today (888) 981-9511 and schedule your free consultation.
