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Divorce in the Military

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The military litigant, with frequent relocations and deployments, presents interesting and often challenging legal issues in the context of domestic relations cases. Whether the service member (or the spouse) is the plaintiff or defendant, potential minefields abound regarding jurisdiction and venue, alimony and equitable division of marital property, and obtaining or defending rights in military retirement benefits or accounts. Whether deemed "alimony"1 or "property", analyzing the availability and content of military retirement accounts (and the relatively new Thrift Savings Plan made available to military members under the same terms as civil servants)2 requires knowledge of both state domestic relations law and federal law, specifically the Uniformed Services Former Spouse Protection Act (hereinafter referred to as "USFSPA"), which has its own jurisdictional requirements for division of military retirement benefits.3 In pleading and practice, the domestic relations attorney should not confuse the Georgia domestic relations long-arm statute4 with the jurisdictional requirements of federal and state law in cases with potential alimony or property claims on military retirement pay.
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Divorce in the Military












Suzanne Whitaker, Esq.
Suzanne Whitaker, P.C.
225 Country Club Drive, Suite 240-A
Stockbridge, Georgia 30281
Phone (678) 435-0083
Fax (678) 435-0084
www.whitaker-law.com


1

Divorce in the Military

The military litigant, with frequent relocations and deployments, presents
interesting and often challenging legal issues in the context of domestic relations
cases. Whether the service member (or the spouse) is the plaintiff or defendant,
potential minefields abound regarding jurisdiction and venue, alimony and
equitable division of marital property, and obtaining or defending rights in
military retirement benefits or accounts. Whether deemed "alimony"1 or
"property", analyzing the availability and content of military retirement accounts
(and the relatively new Thrift Savings Plan made available to military members
under the same terms as civil servants)2 requires knowledge of both state
domestic relations law and federal law, specifically the Uniformed Services
Former Spouse Protection Act (hereinafter referred to as "USFSPA"), which has
its own jurisdictional requirements for division of military retirement benefits.3
In pleading and practice, the domestic relations attorney should not confuse the
Georgia domestic relations long-arm statute4 with the jurisdictional requirements
of federal and state law in cases with potential alimony or property claims on
military retirement pay.

1 Though typically thought of in terms of "property", Georgia and other state's courts have often
deemed military retired pay "alimony." See Stumpf v. Stumpf, 249 Ga. 759, 294 S.E.2d 488
(1992).
2 The Thrift Savings Plan (TSP) is not discussed further in this paper as it is far beyond the scope
of this seminar session. The practitioner should be aware that TSP is not governed by the same
federal laws as military pensions; rather, it is the same voluntary TSP traditionally used by federal
civil servants.
3 10 U.S.C. § 1408 et seq. Awarding or negotiating a portion of the military member's retirement
pay is contingent upon a more or less long-term marriage; typically, at least ten years of the
marriage must occur while the member is in an active or reserve branch of the military.
4 O.C.G.A. § 9-10-91(5).

2

The practitioner should also be aware of the provisions of the Service
members' Civil Relief Act of 2003,5 (hereinafter referred to as "SCRA") the
successor federal law to the former "Soldier's and Sailor's Civil Relief Act of
1940"6, which contains important provisions regarding stays of civil and
administrative proceedings as well as protection from default judgments by court
appointment of an attorney for an "absent" military defendant.7
JURISDICTION AND VENUE.
Generally, a divorce plaintiff in Georgia must meet the statutory six -month
residency requirement prior to filing a divorce action in the county of the
defendant's residence.8 The term "resident" is synonymous with "domiciliary" as
used in the code section establishing jurisdiction in divorce cases,9 and both
terms of art refer to a single fixed place of abode with an intent to remain there
indefinitely, even though the resident may have in fact removed himself from that
location, either voluntarily or "involuntarily" as may be the case with a deploying
military member.1 0 As in any other civil matter, establishing domicile requires
both an act ("residing" therein) and an intent to remain there indefinitely,
regardless of the party's military or civilian status.1 1 The minimum contacts
requirement -- fair play/substantial justice/due process -- established by the long

5 P.L. 108-189 (effective December 19, 2003); 50 App. U.S.C.A. § 501.
6 See formerly 50 App. U.S.C.A. § 521 et seq.
7 50 App. U.S.C.A. § 521.
8 O.C.G.A. § 19-5-2. Tate v. Tate, 220 Ga. 393, 139 S.E.2d 297 (1964).
9 Darbie v. Darbie, 195 Ga. 769, 25 S.E.2d 685 (1943).
1 0 Abou-Issa v. Abou-Issa, 229 Ga. 77, 189 S.E.2d 443 (1972).
1 1 Id. See also Midkiff v. Midkiff, 275 Ga. 136, 562 S.E.2d 177 (2002) (holding that a military
plaintiff must actually reside in the county where relief is sought, rather than merely establishing
that location as his "home of record." The term "home of record" is one of many military terms
that have little correlation to an actual residence. In fact, many military members establish
"homes of record" for beneficial income tax purposes, such as a member who attends training in
Florida and, while there, establishes his home of record there to avoid state income taxes.)

3

line of cases predating and subsequent to International Shoe also applies to
divorce cases1 2 ; therefore, the domestic relations practitioner should consider
such evidentiary matters as state tax returns, drivers' license records, voter
registration records and/or requests for absentee voting ballots, deed records,
automobile registration records, banking records, and the like when attempting
to establish the true "residence" of a party. Even though personal jurisdiction
over the defendant is not required for a court to grant a divorce in Georgia,1 3 if a
plaintiff seeks a portion of a defendant's military retirement pay, the court must
have jurisdiction over the defendant himself, rather than merely having
jurisdiction over the res of the marriage.1 4
A military plaintiff may also plead his or her divorce in any county
adjacent to an army post or military reservation in Georgia so long as he or she
has been a "resident" of that post or reservation for one year prior to filing.1 5 A
military member who does not himself reside in Georgia, but whose spouse is a
Georgia resident, may file the action in the spouse's county of residence if the
spouse has resided there for six months.1 6 Of course, by filing an action the
military plaintiff submits himself to the jurisdiction of the court.
BENEFITS? WHAT BENEFITS?
The Uniformed Services Former Spouse Protection Act1 7 requires that a
state court, before awarding military retirement pay benefits as either alimony or
property division, establish personal jurisdiction over the military member in one

1 2 326 U.S. 310 (1945).
1 3 Abernathy v. Abernathy, 267 Ga. 815, 482 S.E.2d 265 (1997).
1 4 Id.
15 O.C.G.A. § 19-5-2.
16 Id.
17 10 U.S.C. § 1408(c)(4).

4

of three ways: by establishing the military member's "domicile"; by consent; or
by the member "residing" there for reasons other than military assignment in
that state or territory. Clearly, a military plaintiff submits him/herself to the
personal jurisdiction of the court by simply filing the action. The military
defendant, however, should consider whether a Georgia court would award the
plaintiff relief in the form of equitable division of marital property or alimony
(possibly in the form of his or her military pension). Contrary to the belief and
fear of many military members ("she's gonna get half of my retirement!") , the
USFSPA does not require that a court award any military retirement to a former
spouse; the Act merely provides guidelines establishing the maximum amount
that may be awarded to the spouse and paid by the Defense Finance and
Accounting Service (DFAS) should the court determine the pension "marital
property" (or payable as alimony), if the spouse meets the coverture
requirements.
The coverture requirement is commonly referred to as being a "20/20/20"
spouse or "20/20/10" spouse, meaning that the marriage and the military duty
were concurrent for (overlapped for) at least ten (10) years. For example, the
division of military pension of a service member serving twenty years active duty,
but who was married to this spouse for only five of those years, would not be
governed by USFSPA. The spouse would, instead, seek an equitable division of
marital property other than a portion of the military retirement payable directly
from DFAS, or as an award of alimony in lieu of military retirement "property."
The domestic relations attorney should also be aware that a "military
retiree" may be either a retired active duty member (generally, one who served

5

twenty years or more on active duty and who draws retirement benefits
immediately upon retirement) or a retired reservist (one who does not draw
retirement pay until age sixty (60)). A military reservist's retirement pay is
calculated in terms of career "points" (generally, one "point" for each day of
active duty, plus points earned during drill weekends, completing certain courses,
or by other methods). A "year" of reserve duty, to be considered eligible as a
retirement "year", must also be a "good year." A "good year" is one during which
the reservist earned a minimum of fifty (50) points; failure to earn at least that
many points would not qualify the member to retire using that "year." Thus,
twenty years may not actually be twenty years when discussing reservists'
retirement benefits. The formula for determining the amount of a reservists'
retired pay is available from DFAS; basically, the total number of career points is
divided by 360, then multiplied by .025 times the base pay of the member's pay
grade (rank) at the time of the member's 60th birthday. (total points/360 x .025
x $x.xx). To further complicate matters, a military member can bounce back and
forth between "active" and "reserve" duty over the course of his or her career.
The practitioner should also be aware that a drilling reservist may not even be
drawing drill pay, but may instead be drilling simply for "the points." This
working-for-no-money may then reduce the ability to pay alimony, and the
nonmilitary spouse may wonder why the reservist bothers. The domestic
relations attorney should also be aware of "early-out" provisions that allow
retirement from either active or reserve duty prior to the twenty-year mark.
Reservists who are "retired" but who are not yet eligible to receive pay are called
"gray area" reservists; generally, the reservist and his or her former spouse are

6

still eligible for commissary and exchange privileges if other requirements are
met, i.e., the 20/20/20 rule.
Pursuant to USFSPA, the maximum amount that may be awarded and
paid by DFAS is fifty percent (50%) of "disposable" military retired pay.1 8
"Disposable" military retired pay means gross retired pay minus (a) recoupments
or repayments to the federal government, such as overpayments for retired pay;
(b) deductions from retired pay for court-martial fines or forfeitures; (c)
disability pay benefits;1 9 and Survivor Benefit Plan2 0 premiums.2 1 A military
member may elect to receive disability payments in lieu of regular retirement
benefits, and such election would then reduce the amount awardable.
The practitioner should carefully weigh the pros and cons of requesting
that military retirement benefits be deemed "property" or "alimony" for both tax
and logistical reasons the same as any other (non-military) retirement account,
taking into consideration the ability to modify the amount as well as restrictions
on remarriage, cohabitation, and other factors. The military, like civil service,
provides Cost-of-Living adjustments (COLA's), which may impact the decision of
whether to seek a fixed dollar amount, a percentage amount, a formulaic

18 10 U.S.C. § 1408(e)(1).
19 Disability pay can be elected by the military member, thereby reducing the "disposable" retired
pay available for alimony or property division. The practitioner is advised that other federal
statutes govern disability pay: besides the VA, Combat Related Special Compensation and
Concurrent Receipts Disability Pay
20 Survivor Benefit Plan (SBP) is another topic outside the general scope of this paper. It is a
death benefit annuity paid to a spouse or former spouse of the deceased military retiree. Just be
aware that it exists and that the Defense Finance and Accounting Service provides more
information and guidance on this benefit.
21 10 U.S.C. § 1408(e)(1). Servicemembers' Group Life Insurance (SGLI) is another life insurance
policy belonging to and under the sole control of the service member, who designates the
beneficiary regardless of any court order. This is another area that is not suitable for negotiation;
a spouse seeking beneficiary status for self or minor children should insist on an additional policy.

7

calculation, or based upon a hypothetical amount.2 2 On the other hand, receiving
the benefits as "property" rather than "alimony" could result in a reduction due to
the service member's election to receive military disability retirement or VA
disability compensation rather than regular military retirement, thereby reducing
the "disposable" military retired pay available to the former spouse. 2 3 In any
event, a spouse seeking the benefits should request that the court maintain
continuing jurisdiction over the account. Attorneys should also be aware that
some military members can "roll over" their retirement into a federal civil service
job, obtaining a year-for-year credit on civil service retirement based on the time
spent in the military. Military retired pay does not impact a former spouse's
eligibility for Social Security (at least, not yet…). A former spouse may receive
SBP monies even in the absence of the receipt of military retired pay unless the
spouse has waived that benefit. Furthermore, a military member, even one who
retired prior to the current marriage, can be ordered to maintain a former spouse
as a beneficiary, with such benefit being deemed an award of "alimony" rather
than a property right.2 4 Be advised, however, that there may be a future offset of
SSI for SBP annuitants. The author strongly advises accounting or tax consulting
for these financial issues, and for any and all tax-related questions or concerns.
The domestic relations attorney should also be aware that some jurisdictions

22 The first two are generally used when the service member has already retired; the last two are
more commonly used when the service member has not yet retired but is eligible and retirement
is imminent, or at least anticipated. The practitioner would be wise to draft the agreement or
request in the order alternative awards if the member does in fact decline to retire, particularly if
the member is a reservist. A fixed amount will not receive COLA whereas a percentage or formula
would receive COLA.
23 This pitfall could be avoided by careful drafting of an agreement or order with some
contingency language that any disability reduction would then be paid directly by the military
spouse rather than by DFAS, and be enforceable by garnishment, wage assignment, or similar
methods.
24 Hipps v. Hipps, 278 Ga. 49, 597 S.E.2d 359 (2004).

8

have state tax exemptions for military retiree pay. This further complicates
negotiations in a "multi-state" divorce.
The USFSPA does not govern other military benefits to which a
"20/20/20" former spouse may be entitled. These benefits include full medical
benefits under TRICARE (the successor to CHAMPUS);2 5 an unmarried former
spouse not covered by an employer-sponsored health insurance plan is
TRICARE-eligible, as well as full commissary and exchange privileges (grocery
and other shopping). There is nothing that the military spouse can or should do
to either attempt to award or to deny (or even to negotiate) these benefits,
because they are statutory entitlements belonging to the 20/20/20 former spouse
regardless of any court order. The former spouse must take the appropriate
documentation (certified copy of the final decree, a current valid photo ID, a copy
of the marriage license, and statements that he or she is not married and has no
employer-sponsored health care plan.) For a "20/20/15" former spouse with a
final decree entered after April 1, 1985, the TRICARE eligibility lapses after one
year.
One benefit that may be of consequence, particularly in a long-distance
parent-child relationship, is "Space-A" travel. Generally, for a nominal fee, the
military member or retired military member and/or his or her dependent
children can fly on military aircraft around the world. This benefit should not be
overlooked if travel expenses to exercise visitation are a consideration.


25 TRICARE actually is a program consisting of three separate levels of care and concordant
premiums and benefits.

9

SPECIAL CIRCUMSTANCES
The USFSPA also provides that a family member ("dependent", meaning
spouse or child) who is a victim of abuse by the military member who then loses
his or her right to receive military retirement pay is entitled to that portion of the
retirement pay even if the military member does not receive the pay (due to
incarceration or other circumstances). This portion of USFSPA requires that
DFAS pay the disposable retired pay directly to the victim spouse or child.26 The
family lawyer should also remember that military retired pay could be lost by
imprisonment for a felony, serving in a foreign military, court-martial, or other
quirky conditions, even including a retiree being recalled to active duty
specifically to face a court-martial for past misdeeds.
In a current marriage, military regulations and policy require that the
military member support his or her family members, and it is an offense subject
to court-martial or even other-than-honorable discharge for a military member to
receive "with dependents" benefits or pay and fail to support the family members.
Most military installations have a Family Advocacy Center as well as a personnel
detachment with available resources for ensuring that an absent military
member's family is provided for during the marriage and in the pending divorce.
The military requires spousal consent (that is, consent by the spouse to whom the
member is currently married) to decline participation or to reduce the level of
SBP coverage.



26 10 U.S.C. § 1408(h).

10

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