When a person wants a divorce in Florida and one of the spouses is in the military, there are complications that must be overcome. Due to the military service, there are specific state and federal laws that may apply, depending on the circumstances. At their core, these laws are designed to protect a military spouse from being penalized by being away from home, specifically preventing a default in the divorce action or the finalization of a divorce of which the military member was not aware.
Residency Requirements for a Military Divorce in Florida
In order to file for divorce in a Florida court, the filing party must be able to demonstrate the following:
• Either spouse is a resident in the State of Florida; or
• Either spouse is stationed in the State of Florida.
Service of Florida Divorce Documents on Active Duty Service Members
There are unique service requirements, specifically that a military spouse who is serving on active duty must be served personally with the summons and a copy of the divorce filing documents in order for there to be jurisdiction over the case in a Florida court. However, as with other protections that are afforded to military members, the active duty service member may waive this requirement by submitting an affidavit that states that he or she is aware of the divorce proceedings and does not contest service. This may result in the case being considered an uncontested divorce.
Unique Protections for Military Members in Divorce Cases
In order to ensure that a person who is serving on active duty does not face a divorce action when he or she is not in a position to respond, there are protections in place. These include a provision in the Soldiers and Sailors Civil Relief Act, 50 U.S.C. § 521, which grants the court in which the divorce petition is filed to postpone the case for the entire length of the military member’s active service, plus up to 60 days after the service member has returned from active duty, depending on the circumstances of the duty and whether the service was during a war. However, the service member can waive this postponement if he wants to pursue the divorce action.
Division of Property
The division of property for divorcing couples where one or both are serving, or have served, in the military is the same as other couples, with one major exception. If one of the spouses was a military member on active duty for a period of ten years during the marriage, then the provisions of the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408, applies. What this does is dictate the manner in which the military retirement benefits of the service member are calculated and distributed by the state court. It also provides an enforcement mechanism through the Department of Defense. The USFSPA allows for a former spouse to receive distributions directly. If the couple does not satisfy the 10-year of active duty requirement then the retirement benefits still are subject to equitable distribution under Florida law. However, it requires the calculation of a value and the inclusion of that amount in the distribution process, rather than the ability to have payments made directly to the former spouse once they become due and payable.
Child and Spousal Support
Although the Florida Child Support Guidelines do apply to the determination of how much support a military member is supposed to pay to his former spouse, the total of the awarded child and spousal support may not exceed 60 percent of the service member’s pay and allowances.
Many times, the spouses of military service members are unsure of their rights. If you wish to file a divorce action against a spouse serving in the military, the Palm Beach Divorce Lawyers at the Law Offices of James S. Cunha, P.A. are ready to sit down with you, explain your rights, and assist you in getting the results that you need. We advocate tenaciously on behalf of our clients and are ready to go to work for you. To schedule a confidential consultation, call our West Palm Beach office at 561-429-3924.
