When it comes to divorce, there are a lot of myths out there. And when you’re in the military, those myths can be even more damaging. That’s why we’re here to bust some of the biggest myths about military divorce in North Carolina.
Military divorces present many unique challenges that are not present in civilian divorces. Multiple laws protect servicemembers and their spouses during the divorce process. Having a thorough and accurate understanding of how military divorces are handled is critical for meeting your goals during your divorce.
An experienced Charlotte military divorce lawyer will help you throughout the process. Let’s take a look at the five myths of military divorce in North Carolina.
Myth #1: Military Divorce Is Just Like Any Other Divorce
One of the biggest myths about military divorce in North Carolina is that the process will be the same as in a civilian divorce. The military lifestyle is unique, and military divorce is no different. While military divorce has distinct similarities to civilian divorce, military couples face exceptional circumstances and additional challenges that are not present for those in civilian marriages.
From the jurisdictional rules governing military divorces to military benefits, it is important to understand the nuances that exist when navigating military divorce as opposed to civilian divorce. Understanding military rules, regulations, and legal processes surrounding military divorce is essential for the process to move swiftly and efficiently.
Having guidance from a professional with military knowledge can be invaluable in simplifying the process of obtaining a fair resolution.
Protections for Servicemembers During a Military Divorce in North Carolina
The Servicemembers Civil Relief Act (SCRA) bars the court from making default judgments on your case in your absence while you are serving on active duty abroad.
Furthermore, under normal circumstances, when one spouse files for divorce, the other will need to respond in writing within 21 days. However, servicemembers can file for an extension when deployed, on active duty, or within 90 days of their release from active duty. This extension will last for 90 days, and under certain circumstances, additional extensions can be granted.
However, extensions will not be granted indefinitely, and proceedings will only be delayed if the military member’s duties interfere with their ability to participate in divorce proceedings.
Protections Your Spouse Will Receive During a Military Divorce in North Carolina
The Uniformed Services Former Spouses’ Protection Act (USFSPA) provides your spouse with the right to a portion of your military pension, retirement pay, exchange, military health benefits, and commissary as part of a final divorce order. While they may have a right to receive part of these various benefits, your lawyer can ensure they aren’t awarded more than is warranted.
This law authorizes state courts to divide military assets as part of a divorce order and provides a method of enforcing these orders through the United States Department of Defense (DoD).
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Myth #2: The Servicemember Never Gets Custody of the Children
Another common myth that can discourage servicemembers is that they are never granted custody of their children during a divorce. North Carolina military law can be complex regarding divorce and custody determinations, particularly regarding military personnel. Contrary to popular belief, members of the military are subject to the same judicial oversight as civilians.
While the court does consider active-duty status, it is not the only factor in determining custody. The court considers many additional factors, such as the best interest of the child and the overall welfare of the family, as top priorities when determining who holds legal and physical custody.
It is important for servicemembers to remember that they have the same rights as their spouses in a custody battle. If a military servicemember is facing divorce proceedings in North Carolina, they may need to consult a Charlotte divorce lawyer versed in military law in order to protect their parental rights and ensure that the best possible outcome is secured for their family.
Deployment and Relocation Can Create Disruption to Custody Arrangements
Servicemembers are often required to deploy for active duty or relocate to a new duty station, which can disrupt custody and visitation schedules. If a servicemember is deployed on active duty, the other parent may be granted sole physical custody while the servicemember is serving abroad. However, once this deployment is over, custody will be revisited.
If the servicemember is required to relocate to a new duty station, it can significantly impact the current custody and visitation arrangement. The court will consider the best interest of the child and the custodial rights of each parent when making a ruling in these cases.
Because military members are often required to relocate on a temporary or permanent basis, modifications to the original custody and visitation order are frequently needed to ensure the needs of the child are being met.
Myth #3: The Non-Military Spouse Will Not Be Able to Get Alimony or Child Support From a Military Member
Contrary to popular belief, as a military member, you can be ordered to pay alimony or child support even if you are not married to the recipient. According to military law and family codes in Charlotte, North Carolina, military spouses have the same rights of financial protection during a divorce as their civilian counterparts.
If the court determines that you are not providing adequate financial support for your spouse or children, an order granting alimony or child support from military-earned funds can be issued.
Factors Considered When Determining Alimony and Child Support During a Military Divorce
When a service member is going through a divorce, the court must consider several factors to determine appropriate alimony (spousal support) and child support obligations.
When determining spousal support in a military divorce in North Carolina, the main factors that will be considered include:
- The length of your marriage: Longer marriages typically result in higher alimony awards. One of the main reasons for this is that the employment opportunities for dependent spouses are significantly fewer in long marriages where they have been out of the workforce for a lengthy period or are subject to frequent relocation.
- The earning capacity of each spouse: The court will evaluate the income-earning ability of both the servicemember and the civilian spouse to set alimony.
- Standard of living during the marriage: Spousal support aims to maintain the dependent spouse’s marital standard of living after the divorce.
- Financial needs and resources: The court considers the financial circumstances and resources available to both parties.
- Contributions to the marriage: Sacrifices made by the civilian spouse, such as forgoing their own career or education to support the servicemember, can impact alimony.
When it comes to making a ruling on child support during a military divorce in North Carolina, the primary factors that will impact the decision of the court include:
- Income of both parents: The servicemember’s base pay, allowances, and any other income sources are considered, as is any income earned by the civilian spouse, along with their earning capacity.
- The needs of the child: Factors like the child’s age, health, educational requirements, and cost of living are considered in determining the child support obligation.
- Time spent with each parent: The custody and visitation arrangement and the amount of time the child regularly spends with each parent affect the support amount awarded by the court.
- Special expenses: Additional costs for things like childcare, healthcare, and extracurricular activities can increase the child support obligation owed by the paying parent.
- Tax implications: The tax treatment of child support payments is also considered when setting the final amount of support that will need to be paid.
Consulting a Charlotte family law lawyer with experience handling military divorce cases is crucial to ensure the alimony and child support determinations are fair and account for all relevant factors.
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Myth #4: If You Are Getting Divorced, Your Spouse Will Have to Move Out of Military Base Housing
Another myth that commonly causes confusion is the right to live on a military base after a divorce. Servicemembers often think they are entitled to remain in their military base housing when going through a divorce and that their spouse will have to move.
However, military bases can have complicated living arrangements, and the servicemember does not have any greater right to their family home on base than their civilian spouse. Ultimately, the decision on which party, if either, is allowed to remain in the home is up to the garrison commander.
The garrison commander will consult with each spouse, as well as the Staff Judge Advocate (SJA), before making their decision. If you have children with your spouse, their best interests will be the primary factor in this decision. The military offers legal resources to help servicemembers understand their rights and make informed choices during the divorce process.
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Myth #5: All Property Acquired During the Marriage Will Be Divided Equally in a Military Divorce
The fifth and final myth that is commonly associated with military divorce is that all property acquired during the marriage will be divided equally. In reality, the court considers various factors when deciding on the division of marital property, such as the length of marriage and the contribution of each spouse to the acquisition of assets.
The court may also consider other financial circumstances, such as whether one or both spouses are sacrificing their future income for their spouse’s career in the armed forces. Additionally, even if both spouses’ contributions helped with certain asset acquisitions, this does not guarantee equal division.
Ultimately, how marital property is divided varies from jurisdiction to jurisdiction (even within the same state) and requires careful consideration from an experienced legal professional familiar with military divorce laws.
Equitable Distribution in North Carolina
North Carolina is an equitable distribution state. Unlike community property states that divide all assets 50/50, the goal of equitable distribution of property in a divorce is to divide all marital property in a fair manner that considers the needs and means of both parties.
With equitable distribution, some assets are considered marital property, and others are separate property. If an asset is determined to be separate property, it will not be included in the division of property but will remain in the ownership of the spouse to whom it belongs.
The goal of equitable distribution is to ensure each spouse is able to maintain the standard of living they enjoyed in their marriage.
Get Help From an Experienced Military Divorce Lawyer in North Carolina
These five myths of military divorce in North Carolina are only a few of the misconceptions about military divorce. If you are considering divorce or have already been served with divorce papers, you need to seek experienced legal assistance. The attorneys at Melone Hatley, P.C. have represented clients in hundreds of military divorces and will help you understand your rights and options.
We offer a free initial case review with our Client Services Coordinators so that you can learn more about how we can help you before making any decisions.
Contact us online or give us a call to schedule your appointment. Feel free to check out our client testimonials to understand better the type of service we provide to our clients.
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