Divorce is not a rare occurrence. Most divorce laws vary state-by-state, but military divorces must comply with federal laws as well. Here’s what you need to know about the basics of military divorce in Georgia.
Military divorces comply with both Georgia’s state law and the Uniformed Services Former Spouses’ Protection Act (USFSPA). The 1981 Supreme Court decision upheld a ban on dividing military retirement pay in divorces until it was reversed. It was reversed by the ban was at odds with how courts routinely apportioned civilian defined benefit retirement plans including 401ks or IRAs.
Residency Requirements
There are certain laws necessary to qualify as a resident when it comes to divorce. The requirements include 6 months of residency. For those living on a military base, 12 months of residency must be met.
Division of Military Retirement Pay
The federal law allows for lifetime alimony even if a spouse builds a lucrative career or remarries.
The 1982 USFSPA grants states the authority to characterize non-disability military retirement pay as property to which the state court equitably divided between the spouses when the couple separates. USFSPA specifies that military spouses must contribute to retirement so that spouses who sacrificed career advancement and frequently relocated receive a portion of the military benefits.
Related to: How to Calculate Military Retirement Pay in a Divorce
Child Custody
Georgia law currently prohibits asking for custody modifications on the grounds of a spouse is away on military duty. Judges cannot issue any final custody orders while someone is deployed or within the first 90 days after their return.
Serving Divorce Papers In A Military Divorce
As in civilian divorces, the initial papers in a military divorce must be served to the non-filing spouse. Accomplishing this step may be challenging for the filing spouse if the respondent is assigned to the following:
- A foreign country
- An active warzone
- An otherwise inaccessible location
In a civilian divorce, the respondent has 30 days to file their response with the court. In the case that the deadline passes without a response, the case often results in default in favor of the petitioner. Military divorces are different. Since they are active-duty service members, they are protected by the Servicemembers Civil Relief Act (SCRA).
Under this federal law, the active-duty husband or wife can request a “stay” or postponement of the proceedings to give them time to participate in the case. The stay is at least 90 days and may stretch the entire duration of active duty plus a maximum of 60 days.
Understanding Support Orders
In Georgia, this same protection applies in cases of child support and spousal support. While being in the military does not exempt anyone from paying support obligations, it does allow them to delay the court proceedings and support payments.
In terms of child custody, the divorce court may issue a temporary custody order even if the SCRA delay is in place. Under the Georgia Military Parents’ Rights Act, the final custody order, however, cannot be issued less than 90 days after the servicemember’s duty is over.
Georgia State Alimony Considerations
Under Georgia law, a judge must weigh various factors to evaluate and determine the amount of alimony. In terms of permanent alimony awards, the judge has broad discretion. The factors taken into consideration are among the following:
- Length of the marriage and the couple’s standard of living
- Age, physical and emotional condition of each spouse
- Financial resources available
- Time necessary to seek education or training to seek appropriate employment
- Contribution of each spouse to the marriage (includes child care and education)
Generally, the longer the marriage the better chance of an alimony award. But when it comes to the military retirement pay there is no minimum timeframe before a spouse could be entitled to a portion of the benefits. For separating couples, it is also important to note that alimony is deductible for tax purposes to the payor and income to the spouse that receives the alimony.
Military Benefits
Military benefits are governed by the Uniform Services Former Spouse’s Protection Act (USFSPA) including the following:
- Military retirement
- Pensions
- Health coverage
This federal law gives state courts the power to divide these benefits in a divorce.
Georgia courts divide property equitably in civilian divorces. But in a Georgia military divorce, the civilian spouse is not automatically entitled to receive a portion of their military spouse’s retirement, pension, or healthcare. For a non-military spouse to qualify for the division of these benefits, the following three conditions must be met:
- The marriage lasted a minimum of 20 years
- The military spouse was active for a minimum of 20 years
- There was an overlap of the first two conditions
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