Military Law FAQ
My Spouse Is in The Military and We Are Getting Divorced. What Should I Know?
Though many of the general practices will be the same, a military divorce creates a number of additional issues which are unique only to military personnel and their spouses. The Uniform Services Former Spouses Protection Act was created to address a number of these issues, particularly the former spouse’s eligibility for continuing benefits and division of the member’s military retired pay. But the former spouse does not automatically receive any of these entitlements. For example, USFSPA permits the State Court to treat military disposable retired pay as marital property and therefore divide it in a divorce action.
Additionally, under USFSPA, a former spouse, like a current spouse, can be designated as a Survivor Benefit Plan beneficiary. Survivor Benefit Plan (SBP) is an annuity that allows retired service members to provide continued income to a named beneficiary in the event of the retiree’s death. When a service member becomes eligible for retirement, he or she will be enrolled in the SBP unless he or she declines to participate. If divorce occurs after retirement and the servicemember had initially elected to participate when retiring, the divorce terminates the initial beneficiary designation in favor of the “spouse.” However, coverage may be continued in favor of a “former spouse” either voluntarily, to honor an agreement between the parties, or to comply with a court order. The former spouse, however, must elect “former spouse coverage” from the appropriate military finance center within one year of the date of the final divorce decree.
What Does USERRA Really Mean?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard, or other “uniformed services” are not disadvantaged in their civilian careers because of their service; are promptly reemployed in their civilian jobs upon their return from duty; and are not discriminated against in employment based on past, present, or future military service, and applies to virtually all civilian employers, including the Federal Government, State and local governments, and private employers, regardless of size. If a military member leaves his civilian job due to military service, regardless if the service is voluntary or involuntary, in peacetime or in wartime, he or she is entitled to return to that job, with accrued seniority, provided he or she meets the law’s eligibility criteria.
But USERRA applies only to federal military service. Reemployment rights for military service resulting from orders originated by a state’s governor (non-federal orders) are covered by State Laws.
How Does the SCRA Really Protect Me and How Does It Work?
Formerly known as the Soldier’s and Sailor’s Civil Relief Act (SSCRA), the revised law, enacted in 2003 and now referred to as the Servicemember’s Civil Relief Act (SCRA), protects those persons who serve on active military duty (to include the reserve components and the National Guard) from adverse consequences to their legal rights as a result of their service. The purpose of the Act was to allow service members the ability to devote their full attention and all their energies to the mission and has now been expanded to include not only more protections for the service member but in some circumstances for their dependents.
The SCRA provides protection against adverse or default judgment in civil or administrative actions, as well as offers protection for issues involving rental agreements, security deposits, prepaid rent, eviction, installment contracts, credit card interest rates, mortgage interest rates, mortgage foreclosure, civil judicial proceedings, automobile leases, life insurance, health insurance, and income tax payments. To receive the protection, however, the service member must be prepared to show that military service has had a “material effect” on the legal or financial matter involved and must be requested during the member’s military duty or within 30 to 180 days after military service ends, depending on certain circumstances.