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Join Elizabeth Stevenson from New Direction Family Law and her colleague Ashley Oldham as they discuss the unique challenges of military divorces. In this episode, they delve into the nuances of divorce for military families, covering topics such as pension division, custody arrangements, and the Uniform Deployed Parents Custody and Visitation Act. Ashley, a board-certified family law specialist with extensive experience in military divorces, provides valuable insights on jurisdiction, survivor benefits, and child support. Whether you're a service member or a spouse, this episode is packed with essential information to help navigate the complexities of military divorces.
00:00 Introduction and Guest Introduction
00:38 Military Divorce Overview
02:33 Jurisdiction in Military Divorces
03:54 Custody Issues in Military Divorces
09:49 Division of Military Pensions
15:55 Domestic Violence and Military Personnel
17:25 Military Support Programs and Conclusion
Creators and Guests
Host
Cameron Heinsohn
Marketing & Business Development Manager
Host
Guest
What is Ex-it Strategy?
Your no bullsh$t guide to divorce with experienced attorneys from New Direction Family Law and guests and professionals who have been there. Unfiltered discussions to help you move from victim to victorious and from bitter to better.
71 Exit Strategy
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[00:00:00]
Elizabeth Stevenson: Hi everyone. It's Elizabeth Stevenson with New Direction Family Law, and I've got another of my partners in crime.
Ashley Oldham. Hi, I'm Ashley. And we have Cam here today as our, um, our ed. Well this is say my age, our ED McMahon for the Johnny Carson Show. Yeah, the mc. The mc. That's right. So what are we talking about today, cam?
Cam: I think we're gonna start with maybe some. Quirky little nuances that are tailored towards, um, divorce if you or your spouse slash ex soon to be ex-spouse or in the military.
Cool. So,
Elizabeth Stevenson: um, and Ashley, you haven't been on a lot. It's usually Sarah is my other partner in crime. So tell us a little bit about yourself. Sure. Um, one, I wanna say she's a specialist and family law holds [00:01:00] that title. So, and does a lot of folk work with folks in the military?
Ashley L. Oldham: Yeah, sure. I've been practicing family law in North Carolina since 2011.
Um, I was board certified as a specialist in 2018, and for the first good half of practicing law, I really focused a lot of military divorces. Um, it was. Of particular interest to me being in North Carolina, you know, we have a lot of bases close by. Um, I went to Campbell, which was, you know, at the time down there in Bowie's Creek by Fort Bragg, Fort Liberty.
It's a, is it going back to Fort Bragg? Yeah, but it's
Elizabeth Stevenson: not
Ashley L. Oldham: the original Fort Bragg, general Bragg, I don't think. Yeah, right, right. Um, so I focused a lot on that, published a few articles that, a few speaking topics, and it's always kind of been something that I've, um held onto throughout the years.
Elizabeth Stevenson: So just as an overview, what makes, if you're in the military.
Um, just generically, does, does that affect your divorce, your separation, your custody, your property, all of those sorts of issues?
Ashley L. Oldham: I would say for the most part, [00:02:00] no. I mean, de military divorces by and large follow the same track of a civilian divorce. There are just a few nuances, um, you know, among.
Others is pension divisions. So retirement benefits, survivor benefits, um, jurisdiction where you can file. 'cause you know, as we, as we know service members are quite mobile, um, whether it's deployments or permanent changes of station. Um, so, so jurisdiction, pension, benefits, custody, child support, there's a lot of nuances that come into play in kind of every area, even though it follows the same kind of general overview.
Elizabeth Stevenson: One, explain what jurisdiction is, and if you're in the military, is it where you're stationed? Is it where you primarily reside prior to who? Who would be able, what judge would be able to say
Ashley L. Oldham: who can do what. Yeah. How's that gonna work? Well, in true lawyer fashion, it depends.
We love that answer. Um, one of the unique things about the military is that, um, they often have a home of record that may not ma match where they live. [00:03:00] Um, and that can be for various reasons. It can be because, you know, they enlisted in a certain state and then have never changed their, their home of record and federal law allows them to do that.
Or a lot of times we see it for tax. Purposes, right? Mm-hmm. They wanna mm-hmm. Um, claim a state that has beneficial state tax laws for them. Um, so there's jurisdiction in that matter. There's also a unique aspect of jurisdiction regarding the pension only. Um, so you can have jurisdiction over the service member.
You can have jurisdictions decide who gets the house. Spousal support, custody, child support, but you also have to have a specific jurisdiction over the pension that isn't necessarily the same jurisdiction as those other aspects. So it's important to talk to an attorney who knows that the discrepancy there to make sure that you don't wind up having to litigate some of those cases in one state or some of those issues in one state and then the division of the pension in another state.
Right,
Elizabeth Stevenson: right. So, um, let's talk about, um, custody. Um. [00:04:00] Anything special, particular about that? I've had cases where there is a custody order, somebody gets orders and they're shipped out, you know, and we have, they're already separated and divorced and have a custody order and that just gets kind of sticky sometimes.
It
Ashley L. Oldham: is, yeah. It's, it's really sticky. Um, particularly, you know, when you're initially drafting the first custody order, a lot of people, um. Fail to include what happens in the event of a permanent change of station or a deployment. Um, but some people do, and if you do, by and large, um, judges are likely to look, look, defer to that, right?
You've decided what was you thought was best for your children at the time. Um, and that's particularly in the case of a law that North Carolina and I think about 30 other states. Um, have, it's called the Uniform, um, deployed Parents Custody and Visitation Act, U-D-P-C-B-A which essentially allows a service member to, if they get deployed, to delegate their visitation rights or their custodial rights to someone else in their family, or someone with a [00:05:00] close unsub substantial relationship to the child.
So like a. Stepparent or an aunt, uncle, something like that. Um, that's one of the most unique nuances, I think I'd say with regard to military custody. Um, because, you know, where else can you delegate your dissertation? Never. Right? That's right. And what other type of case
Elizabeth Stevenson: we don't see that much. So do you ever see, just thinking about this, like if, does the other parent have a right to contest that?
Ashley L. Oldham: Yes. So if they're kind of the law on it in North Carolina has several parts. And so like one part talks about if they can do it by agreement and one part talks about if they can't do it by agreement and if they have to go to court. So there's certain rights in there for the service member. Um, and, and, and the.
Other parent determining in terms of like the timeline, you have to do it on there, have a right to an expedited hearing. If they've already been deployed, they can do it testimony through electronic means, which of course is much more popular now post covid. But, you know, back in the day when the law was passed, that was kind of extraordinary.
Um so, but, but the law does say that [00:06:00] if you have. Plan for it in your custody agreement. What will happen then? The judge should defer, defer to that. Right? Um, so if you, regardless of who you represent, whether you represent the service member or the spouse that's an important thing to think about.
It is whether you do wanna plan for that. In the event that happens
Cam: when there is a disagreement necessarily, like, does the court consider. That one, the service member might be deployed as part of the decision on what to do with the kids or,
Ashley L. Oldham: so if you're using that specific act, it only comes into play if they do have deployment orders.
Okay. Um, so once they get deployment orders, they're required to notify the other parent, um, and present to them a plan as to what should happen. And then of course, if they can't agree on what should happen during deployment, there are steps that allow them to get into court.
Cam: Okay. So they just default to the original, but then that.
It's a long acronym. The military likes their acronyms. Thank you. Um, the, um, where you can grant your custodial rights to the family member. Right. That comes in place. Okay.
Ashley L. Oldham: U-D-P-C-V-A. Um, and, and it's a law not many [00:07:00] people know about and not a lot of judges don't know, know about. And, and the, you know, and it doesn't come up a ton, but in the, the few cases I've had that have involved it, we have had trials and I've really had to educate the judge on it because you just don't see it very much.
Interesting.
Elizabeth Stevenson: Yeah. Have had one case, um. That mom got deployed and the, it was in a small county here and judge gave mom, um, primary custody even though they had 50 50. So dad would have some. To fly over there, come back, you know, over summer and have it, and then no provisions about what happened when the deployment was over.
Mm-hmm. And so mom comes back, moves to Virginia, you know, and so it, it sort of defaulted back to mom, but that, that's an unworkable. Yeah. You know, custody orders. So I don't know if judges can look into the future and say, and when this is over, here's what we're gonna do. That's a question.
Ashley L. Oldham: There is a specific part of the act.
Um, and of, of course, you know, it's so nuanced. I always have to, to look at it to tell you exactly. But there are provisions for what happens when the service member comes [00:08:00] back. I wanna say there's, um, that it automatically expires after a certain amount of time. Um, but then there's, there's certain things that will trigger it expiring earlier.
Um, important to know where the act is and where to look. Um, but it does have provisions for what happens if, um, upon the conclusion of the deployment. However, you know, like everything else, we can't plan for everything. Right,
Elizabeth Stevenson: right. And then you're, what, a year or two, three years out, so many things have changed that even what they planned for three years ago may still not.
Ashley L. Oldham: And then when are you gonna get in court? Right. Exactly.
[00:09:00] So anything else that folks are in the military should sort of, especially, um, if you're not the spouse that's in the military, right. What, what do you need to be looking out for to protect yourself?
Ashley L. Oldham: I think one of the biggest, um, biggest things for either side, but for particularly the former spouse is, knowing your rights to benefits, [00:10:00] so the division of retirement benefits. Mm-hmm. Survivor benefits and then of course continued health insurance. Um, I think one of the most common misconceptions I've seen over the years on both sides, the military member and the former spouse, is. Um, a lot of people believe that you cannot divide the military pension unless you've been married for 10 years.
Um, and that's just simply not the case. Um, there is a 10 10 rule, um, but that just dictates whether the former spouse can receive their direct payments from DFAS. Who's the, the entity that pays that pays the pension benefits? Um. But it, but it, it does, it does not dictate who can, um, who can get a portion of the, the pension.
You can be married a year, two years, five years, and still be entitled to a division of the pension.
Elizabeth Stevenson: And so what, I'm sorry, Kim, I didn't mean to interrupt.
Cam: No, you're, I just had a follow up question. What if they've been married more than once or twice?
Ashley L. Oldham: Yeah. That, that, does their share happen? Yeah. I have one of those going on right now where yes, the service member is paying a former spouse and, and, and the, [00:11:00] the second spouse as well.
Elizabeth Stevenson: Hmm. So does that work like social security that. There's a cap. It, does it take away from the other spouse's portion or does it, does it, no, it does take from the
Ashley L. Oldham: service members. It's a true division of the pension benefits. So, um, yes, in that case, service members dividing them, a portion goes to the first spouse, a portion goes to the second spouse, and a portion goes to him.
Elizabeth Stevenson: Hopefully he is learned his lesson. The next go round, get
Ashley L. Oldham: a prenup. Next go round. When are we doing the episode of Prenups? Yeah.
Elizabeth Stevenson: So what is, um, can you explain, and this is especially true for, um, the non-military spouse. What, why should you ask for a survivor benefit within the pension?
Ashley L. Oldham: Well, again, it depends.
Um, you know, so survivor benefits can be very valuable. Um, particularly the one in the military. It can allow, um, the, so with, if the pension is divided with a former spouse, that former spouse will continue to get their share, um, until the death of the service member, right? If they do not have any survivor benefits.
When the service member dies, their share of the pension will cut off too. Right? And that's [00:12:00] particularly important if you've got a long-term marriage, right? 'cause it's likely that the former spouse moved around a lot, right? Mm-hmm. And maybe didn't work or have as much of a career and have the opportunity to accrue their own retirement benefits.
So if their portion of the pension is suddenly cut off, you know, they can be in real trouble unless they have survivor benefits, which can continue to, um, pay the former spouse 55. We're up to 55% of the four of the service members pension for the rest of the former spouse's life. So it can be a big benefit.
Right. But there's not, there's still downsides to it that you've gotta consider whether it's right for you. For example, it's expensive. It's typically more expensive than, um, like a, a life insurance policy, insurance policy. Right, exactly. Um, so you wanna do a cost benefit analysis there. Um, it also is suspended if the former spouse remarries before the age of 55.
So if you got a young spouse, you might wanna think about whether they really want to bargain for that. Um, knowing that they might get married before that age. Right. And of course, if it's suspended, notice I didn't [00:13:00] say terminated. It's suspended. So if that former spouse is remarriage, then ends in death or divorce, it can be revived.
Right.
Elizabeth Stevenson: Interesting. That is interesting.
Cam: Um, you know. You asking the question about, um, custody and then when we're talking about, um things that the non-service member needs to know, um, one thing that kind of popped into my head is what about housing? I. Like, do you have any input on how that works?
Because I think a lot of parents who try to co-parent try to keep their military or try to keep their housing close together for school districts and things like that. So does that come into play at all during divorce?
Ashley L. Oldham: Well, to, to the same extent as a civilian divorce. I mean, housing is always gonna be important, right?
There's always gonna be school district, um, issues. Service members are. In addition to their base pay, they're giving basic allowances for housing, which is additional pay for the for housing that one is tax free, right? But two is [00:14:00] also designed to, um, be comparable to the, to the zip code, to the mm-hmm.
You know, cost o living in that area. Um, so that's something to consider when you're calculating, you know, child support or ability to pay in terms of what if there's an alimony obligation for the former spouse. So housing can be important. Um,
Cam: there. In a scenario, I think it's pretty common where, um, especially like the service member might have the potential to be.
Deployed often. And so for stability standpoint, they may want their former spouse and kids to be able to stay in one spot if they get divorced. Do the spouse and kids get to stay in military housing? I was gonna
Elizabeth Stevenson: ask that same question. Yeah.
Cam: Like
Ashley L. Oldham: I don't have many, many. Clients that live in military housing, what I see actually far more often is couples that are divorced and that have multiple houses because they've been, um, you know, around, they've lived around the country, right?
Mm-hmm. So they might, um, I have a case right now where they have a house in a rental house in South Carolina, [00:15:00] a rental house in Colorado, and then. They will soon have a house that they're no longer living in, in Fayetteville. Right. Um, right. So here, like here we're talking about, and, and they've made good, very good money because they bought it, you know, before interest rates.
Mm-hmm. Went crazy. Um, so these are profitable rental homes. And so I actually see a lot of those now, um, where the, the families have multiple houses, so you gotta take into consideration. Whether we're going to keep them, how we are gonna calculate, use rental income and calculating benefits and support and whatnot, um, or if we're gonna sell them tax implications, all that.
So it's kind of more of a nuance that I. It's kind of akin to high net worth clients. Mm-hmm. That I think we're talking about later.
Cam: Right. Well, we're definitely like opening up the can of worms and showing people like how like every little situation is a bit D different. Different. Right, right. And so it can just be, yeah.
Lots of
Elizabeth Stevenson: nuances. Right, right. Exactly. Right. Right. So that's may be off topic a little bit. We know the answer to this. Are there special considerations if, for like domestic violence protection orders? [00:16:00] Regarding military because they are, they do carry firearms, that sort of thing. It could gone on their record.
So you know, you wanna sort of. You gotta walk through all those scenarios about what are the, wanna keep you safe, but what are the consequences and are there some other ways that we could possibly figure out how to do that?
Ashley L. Oldham: Yeah, absolutely. When you have, you know, traditional DPOs, domestic violence, protective orders under Chapter 50 B in North Carolina, um, you wanna be careful when you're dealing with a service member or you know.
Police officer, officer. Right, right. Someone who carries a firearm for a living because it can have severe implications mm-hmm. On their career. But of course we gotta balance that with keeping the victim safe. Right. Right. So, um, so you know, there's things you can talk about, other agreements you can discuss and terms that you can add in to.
Negotiate something that's going to protect both parties, right? Um, and not impact someone's career. There's also programs on base, like family advocacy program that can get involved and provide support for the family as well,
Elizabeth Stevenson: right? Well that was [00:17:00] really, that was an education for me. 'cause I don't do a lot of military divorce.
Yeah. I
Cam: hadn't thought about the firearm aspect of it, but I guess you guys have to all the time. So, yeah,
Elizabeth Stevenson: I mean I have it more in like a law enforcement or something particular to that, but because if you're, it's like, especially in law enforcement, if you guns taken away, you can't work. So you can't pay child support or you can't pay support.
So there are all sorts of ramifications that you sort of have to.
Cam: Yeah. Think
Elizabeth Stevenson: about in that respect.
Cam: Yeah, definitely. Are there other, um, programs that are available through the military, like the advocacy. Program that are important for divorce and things like that?
Ashley L. Oldham: Well, you know, in true military fashion, they probably have a program for everything.
Probably one thing that, um, people often ask about when they call and they're from a military family getting separated, particularly a custodial parent, is support. Doesn't the military require my spouse to pay me a certain level of support? Um, and the answer is yes. Um, but that level is all.
Oftentimes it, it's not [00:18:00] designed to be a replacement for child support or for alimony. The military does require their service members to maintain a certain level of support, um, for their dependents. But it's often not sufficient. So, so while there might be some base level of support that the military requires, you.
Definitely wanna seek an attorney, um, to determine whether that amount of support is, is appropriate for your family and your situation.
Cam: Right. And then the state's
Ashley L. Oldham: laws just kind of take over, right? Mm-hmm. On how to calculate from there. Mm-hmm. Right. The, the, um, interim family support regulations are designed to kind of be a bandaid to put, you know, a bandaid on things while the state courts figure it out.
Gotcha.
Elizabeth Stevenson: Right. That was, and I would say if, if you have questions about this or more questions, Ashley really is our most educated person in this area. Um, but you had a lot of experience in that. So please give us a call. Happy to set a consultation with you and, um, we appreciate you listening today. Yeah,
Cam: thank you.
[00:19:00]