Montana Military Divorce and Family Law
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If I am serving in the military in Montana, can I file for a divorce here?
Montana Military Divorce Lawyer

It depends. At the time you file your Petition for Dissolution, either you or your spouse must have been domiciled in Montana for ninety (90) days. If one of you is a member of the armed services, and have maintained a domicile in Montana for ninety (90) days, or have been stationed in Montana for ninety (90) days prior to filing, depending on other factors, you could elect to file your divorce in Montana.  However, if you have children and will be filing a Petition for a Parenting Plan as well, you need to consult with an experienced Montana attorney, as the correct state for filing could vary.

Can my enlistment in the military prevent my spouse from pursuing a divorce?

It depends whether or not you are active duty. The Servicemember’s Civil Relief Act (50 U.S.C. App. § 521) is intended to protect active duty members from being held in default in lawsuits, including divorce and parenting plan actions. This law is intended to prevent a party to a lawsuit from taking advantage of an active duty military member while that person is serving our country, and unable to represent themselves in legal proceedings. Under the Servicemember’s Civil Relief Act (50 U.S.C. App. § 521), a court must either stay an action or appoint an attorney to represent a person who is an active duty member of the Army, Navy, Marine Corps, Air Force, or Coast Guard.

How is child support determined for a military member?

In Montana, child support is determined by looking at a person’s actual income. Actual income is much broader and different from taxable income or a person’s Adjusted Gross Income. A.R.M. 32.62.106 (1) explains that: “Income for child support includes actual income, imputed income, or any combination thereof which fairly reflects a parent’s resources available for child support.  Income can never be less than zero.” 

Due to the design of military pay, a military member’s income for the purposes of child support is not just his or her military pay, but includes additional allowances and benefits such as BAH and BAQ.

Since the child support guidelines include actual income, the Montana Child Support Guidelines take into account income from whatever source derived, subject to a few exclusions. Actual income can include the following:

  •  salaries, wages and tips
  •  commissions, bonuses, and earnings
  •  profits and dividends
  •  severance pay
  •  pensions
  •  periodic distributions from retirement plans
  •  draws or advances against earnings
  •  interest
  •  trust income
  •  annuities
  •  royalties
  •  alimony or spousal maintenance
  •  social security benefits
  •  veteran’s benefits
  •  workers’ compensation benefits
  •  unemployment benefits
  •  disability benefits
  •  earned income credit
  •  other government payments and benefits
  •  history of capital gains that exceed capital losses

Is it worth fighting over the Military Pension or Military Retirement Pay?

It depends on the length of the marriage.  In a long-term military marriage, often the single largest asset is the Military Pension or Military Retirement Pay.  Typical military retirement pay usually ranges from $ 1,200 to several thousand dollars per month (or substantially more for generals and flag ranks).  If a person has a forty-year life expectancy, post-retirement, the pension can be worth anywhere between $ 590,000 to more than two million (absent a present value reduction and excluding cost of living or inflation).  Given the value of this asset, if you are facing this type of a military divorce, you should seek the advice of an experienced Montana divorce attorney.

Am I even entitled to my spouse’s Military Retirement Pay?  

The Uniformed Services Former Spouses’ Protection Act (USFSPA) governs how military retirement benefits are calculated and divided upon divorce.   Unless you have been married ten (10) years or more, the military generally will not split up the pension.  However, even though it may not be split up formally by the military, Montana courts will likely consider any part of the pension a marital asset if you were married to the military member while part of the pension was earned.  For example, if your spouse was enlisted for twenty (20) years, but you were only married ten (10) of those twenty years, the court will only consider ten (10) years of military pay as a marital asset. 

Will I lose my military benefits upon divorcing my military spouse? 

You will typically lose your Military ID Card and all benefits unless you have been married for a minimum of fifteen (15) years.  This means that there must be a fifteen (15) year overlap of the marriage and military service. 

What is the 20/20/20 rule?  

Under the 20/20/20 rule, a former spouse of a military member will receive full benefits, typically including medical, commissary, base exchange, theater, etc. so long as that former spouse remains unmarried and provided that:

  • The marriage with the military member lasted at least twenty (20) years;
  • The military member performed at least twenty (20) years of service creditable for retirement pay; and
  • There was at least a twenty (20) year overlap of the marriage and military service

Usually, the military spouse will receive medical care benefits unless that military spouse is covered by an employer-sponsored health care plan.  If the 20/20/20 former spouse remarries, eligibility for the benefits is terminated.  However, if the subsequent marriage ends in death or divorce, commissary, base exchange and theater privileges may be reinstated, but medical care benefits cannot be reinstated.

What is the 20/20/15 rule?

Under this rule, the former military spouse qualifies for medical care benefits for only one year from the date of the divorce, dissolution or annulment.  However, if the former spouse is covered by an employer-sponsored health care plan, medical care benefits are not available.

 Tags: Military Divorce, Military Divorce Lawyer, Montana Military Divorce