Albuquerque Military Divorce Lawyers
Divorce can be difficult under any circumstances, but when one or both spouses are in the military, significant additional complications can arise. This is true whether you’re a member of the Army, Navy, Marines, Air Force, Coast Guard, or the National Guard. Some of these concerns have to do with the fact that service members have military benefits that may be considered marital property in some cases and the nature of their work can often keep them overseas for months or even years at a time.
If you are a member of the military or a military spouse and are going through a divorce or believe that one may happen in the near future, it’s important that you speak to an Albuquerque military divorce attorney as soon as you can. At Legal Solutions of New Mexico, we are committed to providing individualized legal counsel and representation to each client we represent. In addition, we unbundle our services so that you have control about how much you spend on your case.
Division of Military Benefits in a Divorce
Of particular concern to many people involved in a military divorce is whether the other party will be entitled to certain benefits or their access to certain benefits will continue after the divorce is finalized. This is usually a complicated issue that depends on a variety of factors, including the length of the marriage, whether the marriage occurred during the service member’s time of service, and the type of benefits at issue.
At no point will an ex-spouse will be entitled to a military member's pay. They could, however, be entitled to spousal support that a military member may need to pay out of his or her income. Notably, however, the Servicemember’s Civil Relief Act (SCRA) may provide active duty military members from civil suits regarding nonpayment.
The way that military retirement benefits are governed by both state and federal law. While state law determines how military benefits will be divided, a federal law known as the Uniformed Services Former Spouses’ Protection Act (USFSPA) allows former spouses to obtain direct payment of part of a former military member’s retirement pay.
Military members and their families are eligible for medical benefits under the TRICARE program. TRICARE benefits continue for ex-spouses after divorce provided they meet the “20-20-20” rule:
- The marriage must have lasted for at least 20 years
- The service member served for at least 20 years
- The period of service and the marriage overlapped for at least 20 years
- The former spouse has not remarried
- The former spouse has not enrolled in an employer-sponsored healthcare program
If an ex-spouse qualifies under the 20-20-20 rule, TRICARE benefits continue until he or she is 62 or becomes eligible for Medicare. There are also more limited benefits available to spouses whose marriages overlapped for at least 15 years. Finally, ex-spouses may be eligible for paid coverage through the Continued Health Care Benefit Program regardless of the length of their marriage in certain situations.
Child Custody During Military Divorce
Another issue that is often an issue in military divorces is child custody. Because military members can be deployed for significant periods of time, many are concerned that the fact that they cannot be around to parent full-time will affect the way that child custody is determined in their case. In the past, the was the case, and deployment could affect child custody or come only to be facing a motion to modify custody based on the fact that he or she has not been around for months.
New Mexico courts determine child custody cases based on the best interests of the child, which in turn is determined by a number of factors, including the child’s relationship with the parents, whether the parents are able to provide adequate care for the child, and whether each parent is willing to accept the responsibilities associated with parenting.
One could certainly argue that deployment and the possibility of future deployment should be a consideration in determining the best interests of the child, putting service members at a distinct disadvantage in child custody cases. Fortunately, there are certain protections under state and federal law for deployed service members. Under New Mexico’s Service Member Child Custody Act, a child custody order cannot be modified while a service member is deployed.
What Factors Affect the Division of Military Benefits and Child Custody?
As mentioned above, there are a number of factors that can affect the way that issues related to the division of military benefits and child custody are settled. These include the length of the marriage, the conduct of the parties during the marriage, the type of benefits at issue, and other circumstances. In addition, the way that these issues are resolved often involves the intersection of complicated state and federal laws with which many military members and even divorce lawyers may not be familiar. For this reason, it's critical for anyone involved in a military divorce to seek the counsel and representation of an experienced New Mexico military divorce attorney.
How Can Our Military Divorce Lawyers Help You?
If you are going through a military divorce, you should contact Legal Solutions of New Mexico immediately. To schedule a case evaluation with one of our attorneys, call our office today at 505-445-4444 or contact us online.