Military Divorce in Florida
Attorney Lisa Marie Vari understands the legal, financial, and emotional concerns involved in a Florida military divorce case as she is the Vice-President of the Florida Military Legal Consortium (FMLC), a community based project developed with the Army OneSource program. Ms. Vari is also a divorced spouse of a retired non-commissioned officer (NCO).If you are serving our country as an active duty servicemember in the United States Army, Navy, Marines, Air Force or Coast Guard and you have a Florida family law matter which arises in Miami-Dade County, Call us at 305-222-7351, or e-mail us to schedule an appointment
Federal & Florida Military Divorce Laws
Of particular importance in Florida military divorces are situations where the active duty service person has minor children and is being deployed to another country or is transferred to an out-of-state military base. A Florida military divorce with children can be complicated if you are unaware of the Florida child custody laws.
In child custody and time-sharing cases, Florida child custody rules dictate that the family court where the minor children have resided for the past six months generally is the court where the child custody issues must be heard. It is especially important to remember that the military’s requirement of a Family Care Plan and Powers of Attorney that attempt to assign custody of a child to someone other than the biological parent are not binding upon a Family Court judge. For this reason, it is critically important to hire a Florida military divorce lawyers and establish a child custody or time-sharing order prior to deployment to a foreign country or state. Otherwise, you may return to Florida and find that the children have relocated or moved out of state and you are traveling across the country to pursue your child custody rights and have visitation with your children.
In July of 2010, the Florida custody laws were amended to add protection to the custody rights of the deploying service member. Section 61.13002 was added that is titled “Assignment of Timesharing Due to Military Service”. The new statute allows a parent who is activated, deployed or temporarily assignment on orders in excess of 90 days to designate a person(s) to exercise their child custody rights on behalf of the parent when their service materially affects their time-sharing. The person designated to exercise the military parent’s time must be a family member, stepparent, or relative of the minor child(ren) by marriage. The designation must be in writing to the civilian parent (or conceivably the other military parent) at least 10 days prior to the next time-sharing date. If an agreement on who will act as the designated person cannot be made by the parties, an expedited hearing can be scheduled for the family court to decide the issue. It is advisable for the military parent to address the issue as part of an overall divorce proceeding or any other child custody proceeding.
Other issues that arise in military divorce cases are the proper analysis under Florida and Federal law of military compensation packages including military pay and military pensions. Our Florida military divorce lawyers know how to properly characterize income of active duty military personnel for support purposes including signing (re-up) bonuses, BAS, BAH, hazard duty pay, other special pay for specific skills or duties such as overseas pay, foreign language pay and jump pay.
In some situations, family courts may attempt to require military personnel to name their children or the civilian parent of their children as the beneficiary of their Serviceman’s Group Life Insurance (SGLI). However, the serviceman and civilian parent should be aware that federal law provides that the serviceman is free to change beneficiary designations on his or her SGLI at any time and even in contravention of a court order or settlement agreement.
Uniform Services Former Spouses’ Protection Act
Any service member facing a separation or divorce should be aware of certain military divorce benefits including the Uniform Services Former Spouses’ Protection Act (USFSPA). The USFSPA is a law Congress enacted in 1982 to provide benefits to certain former spouses of military members. It allows state courts to divide military retirement benefits that include but are not limited to disposable military retired pay as marital property upon divorce under certain circumstances. The USFSPA does not establish a right to any specific amount of retirement pay that a former spouse may be awarded in a divorce settlement. The decision whether to award military divorce retirement pay is solely in the discretion of the state court according to each state’s laws and the amount awarded will vary. Service members should be aware that a court has the right to divide retirement benefits even if the spouses were married for less than ten years.
The military service person should be certain to hire an experienced Florida military divorce lawyer as there are many nuances in dealing with qualified military orders of military pensions based upon the military member’s disposable retired pay. One issue that must be addressed is the proper formula for dividing the military pension. It is highly recommended that the qualified military order exclude non-marital promotions and longevity enhancements. Another issue which must be addressed is situations where the military person waives his or her regular retirement in favor of a Department of Veteran’s Affairs tax free pension due to a service connected disability. If an indemnification agreement is not included in a Marriage Settlement Agreement, the civilian spouse may not be able to enforce their share of the military pension when a VA waiver is made by the retired military member.
Other benefits under the USFSPA that are available depend on the former spouse’s category. A spouse that passes the 20/20/20 test (the military member has completed at least 20 years of creditable service; the spouse has been married to the military member for at least 20 years at date of final decree of divorce; and the period of marriage overlaps the period of creditable service by at least 20 years) can receive commissary and PX privileges and full medical benefits. These benefits will be suspended if the spouse remarries; however, they will be revived if the subsequent marriage is terminated. A 20/20/15 spouse (at least 15 years of overlap between the marriage and the creditable service) may be entitled to full military medical benefits for a one-year period after which the spouse may purchase a DOD-negotiated conversion health policy. These benefits will be suspended if the spouse remarries and will not be revived unless the subsequent marriage is annulled. Former spouses of military members or retirees may have additional benefits under the Survivor’s Benefit Plan (SBP), certain separation incentive programs, and in certain domestic abuse situations.
A Survivor Benefit Plan (SBP) is a plan whereby a portion of a military retiree’s pay is paid to a named beneficiary. Without this plan, all retired pay ceases upon the death of a military retiree. The decision whether or not to elect an SBP is made at the time of retirement and generally cannot be changed. If the former spouse has obtained an order for SBP coverage, the former spouse must submit their request to the service center within one year of the date of the court order.
Servicemembers’ Civil Relief Act
The Servicemembers’ Civil Relief Act of 2003 (formerly known as the Soldiers’ and Sailors’ Civil Relief Act) provides that certain civil lawsuits may not proceed for a period of time while a soldier or sailor is deployed. In family law situations, this protection generally applies to child and spousal support, divorce and equitable distribution actions including actions to modify or enforce a previously entered order. However, Service members (SM) should be aware that when separated, divorced, or never married to the other parent, the Service member should contact a civilian attorney to assist with custody matters prior to the Service member’s deployment as the SCRA may not require a delay in the determination of custody matters when the Service member is deployed and appropriate arrangements between the parents have not been agreed upon prior to the deployment.
Getting started with a Florida Military Divorce
The first question that must be answered in any divorce or family law case is does the specific family court have jurisdiction or, in other words, the power to hear the particular type of problem that the military service person is facing. For Florida military divorce issues, a spouse must be a resident for six months prior to the filing of a Petition for Dissolution for the Florida Family Court to have jurisdiction. Any person in any branch of the armed forces of the United States, and the husband or the wife of any such person, if he or she is living within Florida, is prima facie a resident of the state for the purpose of maintaining any action. If Florida subject-matter jurisdiction is challenged, the party in military service has the burden to show intent that Florida is the permanent residence. If the respondent was a Florida resident before entering the military and he or she never established another permanent residence, the respondent remains a Florida resident. In Florida spousal and child support cases, generally the only requirement is that the person seeking support must reside in Florida.
Contact our Miami Military Divorce Lawyers
Contact our Miami military divorce attorneys at 305-222-7351, or e-mail us to schedule an appointment to discuss your Dade County, Broward County, or Monroe County military divorce issue. Our Miami military divorce lawyers accept family law cases in Miami-Dade County, Broward County and Monroe County.
Consultations are available in person in Miami and several meeting locations throughout Dade and Broward Counties including Lincoln Road in Miami Beach, Galiano Street in Coral Gables, West Country Club Drive in Aventura and Hollywood Boulevard in Hollywood. Appointments are also available by telephone and via Skype internet video chat.
Our lawyers have helped several soldiers, sailors, airmen, marines, and guards with their Florida divorce, military spousal support, military child support and paternity, Florida child custody rules and other family law matters while they were serving on active duty in the military in the United States and overseas.
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