Military families face many special circumstances in family law court. The potential of deployment can have a significant effect on custody and timesharing orders. Benefits and other additions to base salary will affect child support and alimony calculations. Military pensions face specific rules that do not apply to other retirement funds. Whether a court has personal jurisdiction over military personnel also face specific rules. In any case which involves one or more parties who are in the military (active duty, reserve, or national guard), it is important to speak with a qualified Albuquerque attorney who knows how these multitude of factors play into a divorce, parentage, or other family law case.
Custody Considerations for Military Families
Many service members face anxiety about a custody case due to the possibility of deployment. New Mexico statute says that the court will not consider past deployments or possible future deployments in itself when determining what custody arrangement is in the best interest of the child. As such, the possibility of deployment alone should not prevent the court from awarding a military parent custody and/or significant timesharing. If future deployments are possible, however, the parties should come up with a timesharing plan that includes that possibility. Of course, deployment will interfere with a regular timesharing schedule, but orders may still be made regarding contact between the deployed parent and child, the process for notifying the other parent of deployment, and transitioning back to a timesharing schedule once deployment is complete. If a service member is the sole or primary custodian, it is also possible under New Mexico law to grant temporary custodial responsibility to the other parent, or to a non-parent, for the duration of deployment.
Service members also face the possibility of orders stationing the military parent in a different city or state. If the military parent wants the child to move to the new station, the parent must ask for an order from the court for the child to “relocate.” Relocation can be very difficult, especially if the other parent disagrees with the relocation. The current timesharing schedule, the child’s current status quo, and the parent-child relationships all play a role in the court’s ultimate decision. It is important to note the court will not say that a parent cannot move, but the court may prevent the child from moving. If this happens, the court will make orders for long-distance timesharing. Relocation is one area of custody where third party evaluators can be useful to the parties and the court in coming to an appropriate decision, such as a Guardian ad Litem or 706 Custody Evaluator.
Income and Asset Calculations for Military Personnel
Child support in New Mexico is calculated using both parents’ gross monthly incomes. For a service member, monthly income also includes additions/allowances to base pay such as BAH and BAS. Similarly, when calculating the need and/or amount of spousal support, the court will consider allowances or other increases to base pay in the service member’s overall income. When one or more parent is a service member, it is beneficial to pay close attention to incomes for child support and/or spousal support, as military pay can fluctuate depending on allowances, increased pay for deployments, etc.
When it comes to asset division, disability income is not divisible like a pension or IRA would be. For service members, this means that military disability retirement and VA benefits are not divisible. However, the court counts all income sources for child support and spousal support, including disability income.
The two main considerations for military retirements in divorce surround the military pension and TSP. The TSP is divided similar to an IRA, as division is calculated by the amount of funds put in during the marriage. Military pensions, however, are more complex.
Many service members have heard of the “10/10” rule for retirement division, but there are many misconceptions surrounding this rule. The “10/10” rule states that DFAS will only directly distribute retirement to the other spouse if the spouses were married for at least 10 years during 10 years of active service. However, if the parties do not qualify for this standard, this does not mean that the other spouse cannot ask the district court to divide the marital portion of retirement (although calculating the division and receiving payment become more difficult). If the service member becomes disabled or forfeits a portion of military retirement for VA benefits, this can also alter the funds the other spouse receives, potentially bringing the parties back to court.
How to calculate the marital portion of military retirement has undergone drastic changes in recent years. Previously, federal law allowed states to divide the marital portion as that state law decided. This occurred mainly in one of two ways, 1) calculating 50% of the retirement from the date of marriage to date of divorce using the military spouse’s retirement pay (New Mexico’s preferred method), or 2) calculating 50% of retirement from date of marriage to date of divorce using a retired pay number as if the spouse had retired on the date of divorce. Now, however, federal law dictates that military retirement can only be divided via Option 2. This is significant as it makes calculation of retirement as of the date of divorce more complicated for cases in which the military spouse has not yet retired, and the non-military spouse could receive less retirement funds if the military spouse was at a lower rank at the time of divorce than at the date of retirement.
No matter which side of the military retirement division you are on, it is important to have an attorney on your side experienced in the issues of military division to make sure the division is correct and distributed as soon as possible.
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