In many ways, divorce for service members in the military is similar to any other type of civil divorce. Child custody arrangements must be determined, property needs to be divided, and spousal maintenance may need to be paid. At the same time, being in the military presents unique challenges due to the transient nature of employment, and special requirements may apply to the division of military benefits. At Reddin & Singer, LLP, our Milwaukee divorce attorneys frequently work with military members, veterans, and spouses of people in the military who live in Wisconsin and need assistance in navigating the complexity of a military divorce.Distinctive Challenges Facing Military Members and Their Spouses in Divorce
In Wisconsin, military members are subject to the same laws and requirements for a divorce as other members of the public, but with additional complexities. First and most importantly, under the Soldier and Sailors Civil Relief Act, courts have the discretion to halt or postpone divorce proceedings that are instituted against military members who are on active duty. This law protects active service members from being surprised by divorce proceedings and from succumbing to distractions that might compromise their ability to participate in a military operation or fight in a war. It does not prevent a member of the military from being divorced while on active duty, but it is a shield the military member may raise to stay the proceedings.
Even when a military member is not overseas on active duty, it may be difficult for spouses and courts to ascertain where the correct place to bring a divorce action is, since members of the military move so frequently. To address this problem, Wisconsin waives certain residency requirements and allows courts to assert jurisdiction over military members if the member is currently stationed in the state where the divorce proceeding is brought.
Participation in the military may also significantly affect access to children and monetary support during a divorce. Because of a military member’s particular assignment, he or she may be thousands of miles away from their children for an extended period of time. This presents a practical problem to the military member who wants to have regular, frequent, consistent placement with the children. However, Wisconsin has a specific statute that prohibits courts from using a party’s military service against them in making custody and placement decisions. It is presumed that once the military member is located within a reasonable distance of the other parent, the custody and placement arrangements will be what they were prior to the parent being gone. Additionally, since many spouses of military members stay at home or do not work due to their transient lifestyle, military members may find that they are often ordered to pay spousal maintenance to their spouse after a divorce as a consequence of these life decisions. While Wisconsin uses the same calculations to determine child support and spousal maintenance as it would with any other divorce, payments are capped at 60% of the military member’s pay.Handling Military Pension Benefits
Although Wisconsin law governs many aspects of a military divorce, federal law does apply to the division of military pension benefits. The Uniformed Services Former Spouses’ Protection Act (USFSPA) is a federal law that governs how military pension benefits are calculated at the time of the divorce and how they are divided. Under the USFSPA, state courts may determine whether a spouse is entitled to part of their military spouse’s retirement benefits. However, only if the couple has been married for at least 10 years while one spouse was on active duty will the government garnish that portion of the retirement benefits and provide them to the non-military spouse. If the couple was married for less than 10 years of active duty, the military spouse is responsible for making monthly pension payments to the other spouse, if there is a division of the pension ordered. This may require significantly more effort on the part of the non-military spouse in pursuing the benefits that they deserve.Consult a Milwaukee Lawyer for a Military Divorce
Because of the unique requirements imposed on divorces involving military spouses, crafting a careful strategy may be important in determining when, where, and how to file for a divorce. A filing spouse may wish to avoid time periods during which the military spouse is on active duty or is stationed in a state that will make divorce proceedings difficult. Filing spouses may also want to consider whether they are near the 10-year threshold at which pension benefit payments may be automatically withheld from a military spouse’s check, rather than requiring the parties to coordinate payment. At Reddin & Singer, LLP, our Milwaukee attorneys understand how these requirements may affect your rights in a Wisconsin divorce and can help you strategize about how to proceed. We can assist people in Milwaukee, Port Washington, Racine, West Bend, Waukesha, and other communities in Milwaukee, Ozaukee, Racine, West Bend, and Waukesha Counties. Contact our office today online or at (414) 271-6400 for more information and a free initial consultation with a family law attorney.