Military divorce cases are unique because of their interplay of military regulations, state laws, and federal laws. Whether you are a military service member or the spouse of one and navigating a divorce, it will be essential to understand how these laws can affect your specific divorce circumstances.
The experienced Columbia, South Carolina military divorce attorneys at Melone Hatley, P.C. are here to help. We understand the critical nuances involved in military divorce situations and work diligently to ensure your best interests are being represented each step of the way.
Understanding Where to File for Divorce and Legal Jurisdiction in a Military Divorce
Military personnel are often stationed away from their home state and these stations can change frequently. One of the first differences between a military and civilian divorce is legal jurisdiction, which is where you will file and which laws will guide your divorce process.
If you are a military servicemember, you have the option of filing for divorce
- In the state of residency of either spouse – If either of you has been a resident of South Carolina for six months (three months if both of you live in the state), you can file for divorce in South Carolina and South Carolina courts will have jurisdiction over your proceeding.
- Where you are stationed – If you are a servicemember stationed in South Carolina, even if you are not a permanent resident of the state, you can file for divorce here, allowing South Carolina courts jurisdiction.
- Your home state of record – You may also file for divorce in your home state of record, even if you are stationed elsewhere.
It is important to keep in mind that state laws can vary significantly, and you will be subject to the laws of the state in which you file. These laws could impact the grounds for your divorce, your property division, child custody, and alimony.
Grounds for Divorce in Columbia, South Carolina
Grounds for divorce, or the legal reason you use to seek your divorce, will be determined by the state in which you file.
The state of South Carolina recognizes both no-fault and fault-based grounds for divorce.
The only requirement for a no-fault divorce in South Carolina is that spouses must have lived separate and apart without any cohabitation for a period of at least one year.
Fault-based grounds for divorce recognized by South Carolina include:
- Adultery
- Physical cruelty
- Habitual drunkenness or drug use
- Desertion for one year or more
While fault-based grounds do not have a separation requirement, these grounds must be proven to the court in order for a divorce to be awarded. Furthermore, fault-based grounds can have an effect on the outcome of the terms of your divorce when it concerns property division, child custody, or alimony. Consequently, it will be important to get skilled legal advice to consider the consequences of your decisions and weigh your options.
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Division of Marital Property in a Columbia, South Carolina Military Divorce
In South Carolina, property division follows the equitable distribution model. This means that while your marital property is divided fairly between you and your spouse, it is rarely a 50/50 division.
When the court makes property division decisions based on equitable distribution rules, it will consider many variables when making its decision, including
- The duration of your marriage
- Each spouse’s contributions to the marriage
- The value of your marital and non-marital property
- The economic circumstances of each spouse
- Who was at fault for the breakdown of your marriage
- Any child custody and support obligations
- Alimony awards
- Tax consequences
- Debts and liabilities of each spouse
Under equitable distribution rules, these considerations allow the court to make decisions that are more fair considering the unique situation of each couple even when the result is an unequal split.
While marital assets such as homes, cars, vehicles, savings, and investments are subject to division in a military divorce context, the courts also have the authority to divide any military retirement pay you accrued during your marriage under the Uniformed Services Former Spouses’ Protection Act (USFSPA).
Division of Military Retirement Benefits
One of the most significant marital assets that divorcing spouses divide is the servicemember’s military retirement benefits. In South Carolina, military pensions are considered marital property and subject to division in a divorce. However, these benefits are subject to specific rules under the USFSPA.
- The 10/10 Rule – For a military spouse to qualify for direct payment of these retirement benefits by the Defense Finance and Accounting Service (DFAS), the marriage must have lasted for at least 10 years with an overlap of 10 years military service. If a military spouse does not qualify under the 10/10 rule, they must rely on payment directly from the servicemember.
- Calculating the Division – The division of a military pension is typically calculated using only that percentage of the military servicemembers’ pension that accrued during the marriage.
- DFAS can pay up to 50% of the servicemember’s “disposable retired pay” directly to the former spouse, minus other financial obligations such as child support or alimony. Total direct payments cannot exceed 65% of the servicemember’s disposable retired pay.
- Survivor Benefit Plan – A former military spouse may also be entitled to continued coverage under the servicemember’s Survivor Benefit Plan.
While military pensions are considered marital property for purposes of property division in South Carolina, military disability benefits are not. Disability benefits, however, can be used as income for purposes of child support and alimony calculations, however.
What Happens When Both Spouses Live in Military Housing?
If both spouses live in military housing, who retains that housing will become a question.
Housing is generally provided based on the servicemember’s military status and family size. Once the family no longer exists in its previous form, the non-military spouse and any dependents will be required to vacate that housing. The servicemember may be allowed to remain in the housing if they are the primary custodial parent. Otherwise, they may be required to move into barracks or seek other alternative housing, depending on their rank and circumstances.
Child Support in a Columbia, South Carolina Military Divorce
In a South Carolina military divorce, child support is determined by state law and calculated according to South Carolina Child Support Guidelines. Child support will be influenced by both parents’ income, including any income from the servicemember’s military service, and the number of children being supported.
All forms of military pay must be included in these calculations, including the servicemember’s
- Basic pay
- Basic Allowance for Housing (BAH)
- Basic Allowance of Subsistence (BAS)
- Any special pay, such as combat pay or hazardous duty pay
Child support guidelines will also consider expenses such as health insurance, child care costs, and any other pre-existing child support obligations. If a servicemember provides TRICARE health insurance for their children, the court may account for this when calculating child support. The other parent may be required to contribute to any out-of-pocket medical expenses not covered by TRICARE.
Another important aspect of child support during a military divorce is that a servicemember’s pay can be garnished to enforce child support orders. The Defence Finance and Accounting Service can withhold a portion of a servicemember’s paycheck to ensure timely support payments. This includes both active duty and retired pay and will ensure that support obligations are met even if a servicemember is deployed or stationed overseas.
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Alimony in a Columbia, South Carolina Military Divorce
South Carolina courts may award alimony when one spouse demonstrates a financial need after the divorce and the other spouse has the ability to pay. Consequently, not all divorces will involve alimony awards.
Alimony awards are based on a number of factors including the length of the marriage, financial resources of each spouse and if it was filed on fault-based grounds. In a military divorce, alimony calculations must take into account all forms of the servicemember’s pay, including BAH, BAS, and other special compensation.
Military spouses are entitled to financial support even before the court orders it. Military regulations require servicemembers to support their spouses and children even during separation, based on guidelines from their branch of service. Failure to do so can result in disciplinary action under the Uniform Code of Military Justice.
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Temporary Custody and Child Support During Deployment
When a military parent is deployed, they are often unable to fulfill custodial responsibilities. Deployment can also affect child support arrangements depending on the child’s living arrangements.
South Carolina law prevents a servicemember from being penalized in custody arrangements solely because of their military obligations. When the servicemember returns, they can request to reinstate their original arrangement or modify it if circumstances have changed. The law also allows a deployed parent to delegate their visitation rights or parenting time to another family member or relative during their absence.
The Servicemembers Civil Relief Act (SCRA) also provides additional protection. Under the SCRA, a deployed servicemember can request a temporary stay of custody hearing when their deployment prevents them from participating in the hearings. This stay can last 90 days with the possibility of extensions.
Other Protections Under the Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act (SCRA) provides protection for active-duty military members involved in any civil legal proceeding, including a divorce. This ensures that servicemembers are not penalized for their inability to attend hearings or respond to filings. When serving in a military capacity, the servicemember has the right to request a 90-day postponement (stay) of proceedings. If their service continues to affect their ability to participate, they can request additional extensions from the court.
Non-Military Spouse’s Rights
Under the Uniformed Services Former Spouses’ Protection Act, a non-military spouse may retain access to their TRICARE health coverage and commissary benefits depending on the length of their marriage, the servicemember’s time in service, and how long these overlapped.
- Rights under the 20/20/20 Rule – The 20/20/20 rule requires at least 20 years of marriage, 20 years of military service, and 20 years of overlap of both. Under the 20/20/20 rule, the former military spouse maintains lifetime access to their TRICARE benefits as long as they remain unmarried and do not have health insurance through their employer. Furthermore, they retain full military benefits, including commissary privileges and base exchange privileges.
- Rights under the 20/20/15 Rule – The 20/20/15 rule requires at least 20 years of marriage, 20 years of military service, and 15 years of overlap of both. In this case, the former spouse only receives TRICARE benefits for one year after the divorce. They lose other military privileges such as access to commissary and exchange privileges.
- TRICARE Continued Health Care Benefits Program (CHCBP) – When coverage under 20/20/15 ends, the former spouse has the right to purchase extended coverage under CHCBP that provides three more years of health coverage.
While a non-military spouse may no longer be eligible for benefits after the divorce, a servicemember’s children may retain access to commissary and base exchange privileges providing they still qualify as dependents.
Will the Military Supply You With an Attorney to Represent You?
The military provides legal assistance to servicemembers through the Judge Advocate General’s Corps (JAG). JAG offers free legal advice for many civil matters, including divorce.
However, JAG attorneys cannot represent either servicemembers or their spouses in court divorce proceedings. Instead, they can explain the process, review documents, and provide general advice, but not full legal representation. While JAG services offer a valuable resource for understanding military-specific legal concerns, for full representation in a civilian court of law, servicemembers and their spouses must hire a civilian attorney to represent them in a South Carolina family law court.
Getting Skilled Legal Representation in a Columbia, South Carolina Military Divorce
Because of the various financial, legal, and logistical issues, a military divorce is often far more complex than a civilian divorce. Whether you are a servicemember or the spouse of one, it is critical to consult with a South Carolina divorce attorney who has specific experience with military divorces.
At Melone Hatley, P.C., our highly skilled Columbia, South Carolina military divorce attorneys have the experience and knowledge to guide you through your military divorce and represent your best interests. Let us protect your family, finances, and future. Call us at 839-213-4545 or contact us through our website contact form to schedule a free consultation.
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