Separation agreements and divorce present unique challenges to for military service members and their spouses dealing with marital separation. Service members and thier spouses must be aware that there are North Carolina state specific laws and requirements that must be addressed to ensure the protection of your legal rights. Frequent relocations, deployments, and the intricacies of military benefits can complicate the separation process. In such cases, a well-crafted separation agreement becomes an essential tool to address these challenges during the divorce proceedings. This article explores the significance of separation agreements for military couples in North Carolina and provides insights into their creation and content.
What is a Separation Agreement and Why is it Important?
A separation agreement, sometimes referred to as a property settlement agreement or marital settlement agreement, is a legally binding contract that outlines the terms and conditions of separation between spouses. It serves as a roadmap for various aspects of the separation, including property division, spousal support, child custody, and child support. For military couples, separation agreements hold particular significance due to the unique circumstances they face, such as the following:
1. Frequent Relocations
Military life often involves relocating to different duty stations, which can create uncertainty about where and when divorce proceedings should occur. A separation agreement can address these concerns by specifying the choice of jurisdiction, making it easier for couples to navigate the legal aspects of their divorce.
2. Deployment and Mobility
Deployments can disrupt divorce proceedings and custody arrangements. A well-drafted separation agreement can outline how custody and visitation will be managed during deployments and provide clarity for both parents and the children involved. A separation agreement can provide for a family member to take your visitation periods while you are gone or provide “make-up” visitation when you return.
3. Division of Military Benefits
The equitable distribution of military benefits, such as retirement pay and survivor benefits is a critical aspect of military divorce. Military retirement benefits should be addressed in accordance with the Uniformed Services Former Spouse Protection Act (USFSPA). For detailed information on the division of military retirement and the USFSPA visit our article that explains the process and key considerations at Military Retirement and Divorce. It is important to note that the military divorce retirement pension rules have recently changed and that change can have a significant impact on your rights.
A separation agreement can specify how these benefits will be divided, ensuring both spouses’ rights and interests are protected. Military healthcare (Tricare) benefits are provided by federal statute and cannot be negotiated in a separation agreement.
Separation and Military Divorce Effect on Survivor Benefit Plan
Many people believe that the Survivor Benefit Plan (SBP) is required for a former spouse according to the Uniformed Services Former Spouses’ Protection Act (UFSPA). However, the UFSPA does not provide any guidelines on whether courts should award SBP benefits nor how the benefit is to be apportioned between parties.
SBP premiums are deducted from the retiree’s gross retired pay, meaning that both the retiree and the former spouse share the costs proportionally to how they share the underlying pension. If a servicemembers pension is divided 65% to the servicemember and 35% to a former spouse, then the servicemember would pay 65% of the monthly SBP premium while the former spouse would pay 35%. Negotiating the percentage of amount of the pension division can offset the SBP premiums.
The cost of the SBP varies based on the benefit requested and the type of SBP coverage. For the most common benefit, which is spouse or former spouse coverage, the cost is 6.5% of the selected base amount for active-duty personnel. For Reserve Component SBP, the cost is approximately 10% of the retired paycheck for former spouse coverage.
Creating a Separation Agreement for Military Divorce
When creating a separation agreement in North Carolina, military couples should consider several key factors to ensure their agreement is comprehensive and addresses their unique circumstances.
1. Legal Assistance
Seek legal counsel from an experienced military divorce attorney who is familiar with North Carolina family law. This is crucial to ensure that your separation agreement complies with state laws and federal regulations that may affect military benefits.
2. Full Disclosure
Both spouses should provide complete and accurate financial disclosures. This includes listing all assets, debts, income, and expenses. Failing to disclose financial information can lead to challenges in enforcing the agreement later.
3. Division of Property and Debts
Clearly outline how marital property and debts will be divided. This includes assets such as real estate, bank accounts, retirement accounts, and personal property.
4. Jurisdiction
Determine the jurisdiction where any divorce proceedings will take place. This is especially important for military couples who may be stationed in different states or who have recently relocated. Generally, military members have a choice in filing in their home state or the state where they are presently stationed but deciding which state is best for your situation can be a critical decision. For a more detailed discussion on which state military members should file for divorce, see our article about military divorce.
5. Alternative Dispute Resolution
Consider including provisions for alternative dispute resolution methods, such as mediation, in case disputes arise in the future. Provisions that require future disputes to be resolved through mediation or other alternative methods can be important. Mediation can be beneficial for military members because it can usually be done remotely or through video conferencing. This flexibility is a significant advantage for military personnel who may no longer be in North Carolina when the dispute arises, as they may be deployed or have permanently changed to another duty station. For more information, visit our page on the NC divorce mediation process.
6. Review by Legal Counsel
Ensure that both spouses have their own legal counsel to review the separation agreement. This helps protect the rights and interests of each party and confirms that they fully understand the agreement.
7. Spousal Support
Decide whether spousal support (alimony) will be part of the agreement. If so, specify the amount, duration, and any conditions for modification or termination. For more information on military spouse divorce benefits, read our article on spousal support and alimony in North Carolina Separation agreements for a detailed discussion and tips on negotiation.
8. Adultery
Adultery is still a crime in the military, referenced under UCMJ (Article 134). Additionally, adultery is still technically a crime in North Carolina and a spouse who commits marital misconduct, including adultery, is prohibited from receiving alimony unless the adultery was not the reason for the couple’s separation. It is important for military members and spouses to remember both of these principles when negotiating their separation agreement, alimony or spousal support provisions. All too often, service members agree to pay spousal support to a spouse who is not entitled to it under North Carolina law. Alternatively, a service member might refuse to enter into a separation agreement unnecessarily and then get administratively separated from the military due to adultery reported to his command by his wife. An interesting idea and controversial approach is proposed in a Military.com article and discusses whether non-military spouses should lose various privileges for committing adultery.
9. Dating During Separation For Service members
Military members need to understand the UCMJ’s prohibition on adultery, which becomes a crime when three criteria are met: having sexual intercourse, one party being married to someone else, and the conduct prejudicing good order and discipline or discrediting the armed forces. The first two criteria are straightforward but the third involves several considerations, including a 2019 change in the UCMJ that created “legal separation” as an affirmative defense.
“Legally separated” for the military can mean either a signed formal separation agreement or a state court-issued separation order. These agreements are typically drafted by attorneys and resolve significant legal issues like property, debt, support, and child custody. They often become part of the final divorce decree. However, North Carolina separation agreements also usually contain an important provision stating that you are permitted to date during the separation and terminating all rights arising from the marriage.
Being “legally separated” is a key consideration in determining if a relationship violates Article 134 of the UCMJ, but it’s not the only factor which include:
- Rank and position of the parties;
- Impact on the military unit;
- Potential misuse of government resources, and;
- Whether any other UCMJ violations occurred.
Additionally, for the affirmative defense of legal separation to apply, both parties must have been either unmarried or legally separated when the sexual conduct occurred. Finally, an informal separation is not sufficient for this affirmative defense.
Given these considerations, there is always a potential for criminal liability or administrative action for a service member engaging in a new sexual relationship while still married, regardless of legal separation. The safest course of action under the UCMJ is to wait until a final divorce decree is granted. However, a legally binding separation agreement that includes a provision that permits dating during separation can provide additional protection.
10. Child Custody and Support
Address child custody and support arrangements clearly. In a military divorce, it is essential to account for the potential impact of deployments and relocations on these arrangements. Create a detailed parenting plan that specifies visitation schedules, communication during deployments, and how custody will be adjusted when necessary. Additionally, include whether child support will be adjusted during periods of deployment.
Military Family Support Requirements During Separation
While every branch of the military is slightly different, it is important to remember that every branch requires payment of family support unless there is an agreement in place. Frequently a service member is required to pay their estranged spouse a share of the Basic Allowance for Housing (BAH) that is directly related to how many people are in the family.
EXAMPLE – a servicemember has 1 child from a previous relationship, 2 children and an estranged wife in non-government housing from his current relationship. The servicemember is responsible for supporting 4 people: 3 children and his wife. If there is no separation agreement or court order in place setting forth an amount of support, then the military would require the service member to pay an amount equal to ¾ of his BAH to his estranged wife. One-quarter would be “reserved” for his child from a previous relationship.
Additionally, the military command frequently requires that a servicemember pay some form of Interim Financial Support that is designed to assist the estranged spouse with the cost of separating. Each command and branch of service take a slightly different approach to Interim Financial Support, but a service member is commonly required to pay a one-time lump sum of 25% of their BAH as interim support.
Service members must make these payments only if there is no separation agreement or court order in place. This highlights the importance of obtaining a separation agreement as quickly as possible because the NC child support guideline child support amounts are frequently less than the amounts required by the military. For detailed information on these guidelines, visit the NC child support guidelines.
Military Family Support Requirements During Separation
While every branch of the military is slightly different, it is important to remember that every branch requires payment of family support unless there is an agreement in place. Frequently a service member is required to pay their estranged spouse a share of the Basic Allowance for Housing (BAH) that is directly related to how many people are in the family.
EXAMPLE – a servicemember has 1 child from a previous relationship, 2 children and an estranged wife in non-government housing from his current relationship. The servicemember is responsible for supporting 4 people: 3 children and his wife. If there is no separation agreement or court order in place setting forth an amount of support, then the military would require the service member to pay an amount equal to ¾ of his BAH to his estranged wife. One-quarter would be “reserved” for his child from a previous relationship.
Additionally, the military command frequently requires that a servicemember pay some form of Interim Financial Support that is designed to assist the estranged spouse with the cost of separating. Each command and branch of service take a slightly different approach to Interim Financial Support, but a service member is commonly required to pay a one-time lump sum of 25% of their BAH as interim support.
Service members must make these payments only if there is no separation agreement or court order in place. This highlights the importance of obtaining a separation agreement as quickly as possible because the NC child support guideline child support amounts are frequently less than the amounts required by the military. For detailed information on these guidelines, visit the NC child support guidelines.
Waiver of Military Retirement in Equitable Distribution
One of the significant concerns in a military divorce is the distribution of military retirement benefits. In North Carolina, as in many other states, military retirement pay is considered marital property subject to equitable distribution. Equitable distribution means that the court will divide marital property, including military retirement pay, in a manner it deems fair and just based on various factors.
The Uniformed Services Former Spouse Protection Act (USFSPA) plays a significant role in this aspect of military divorce. This federal law allows state courts to distribute military retirement pay to former spouses as part of property division in divorce cases. However, the length of the marriage, overlapping with the military service, is a crucial factor. In most cases, the marriage must have lasted at least ten years overlapping with ten years of military service for the former spouse to qualify for direct payments from the Defense Finance and Accounting Service (DFAS). Still, state courts can consider the military retirement pay as part of the overall property division, even if the ten-year requirement isn’t met.
Critical Point to Consider
Under NCGS 50-11, a claim for equitable distribution must be filed or pending prior to an absolute divorce being entered. Since military retirement is considered marital property subject to equitable distribution, failing to file for equitable distribution before the divorce means a spouse waives their rights to a portion of the military pension.
It is important for both service members and their spouses to understand the implications of the USFSPA and work with legal counsel experienced in military divorce to ensure that the law is applied correctly and that their rights are protected during the division of military retirement benefits.
Military Spouse Separation Entitlements
In a military divorce, the non-military spouse may be entitled to certain benefits and protections. The most notable of these is the military spouse’s right to continued access to healthcare through the military’s healthcare system, often referred to as Tricare. Under the 20/20/20 rule, a former spouse of a service member may retain full Tricare benefits if they meet certain criteria. These criteria include the marriage lasting at least 20 years, at least 20 years of the service member’s military service, and at least 20 years of marriage overlapping with the military service. For more details on the specific requirements of the 20/20/20 rule, see our article on division of military retirement during divorce.
For marriages that don’t meet the 20/20/20 criteria but meet the 20/20/15 criteria (at least 20 years of marriage overlapping with 15 years of military service), the non-military spouse may still have limited access to Tricare benefits but at a cost.
Understanding these entitlements and the specific requirements is crucial for the non-military spouse to ensure they have access to necessary healthcare and other benefits post-divorce. Consulting with an attorney experienced in military divorce can help clarify these entitlements and protect the non-military spouse’s interests.
Modifying and Enforcing the Agreement
Once a separation agreement is established, it can be modified if circumstances change if both spouses agree. For example, adjustments may be needed if a service member is deployed, relocates, or experiences significant changes in income. However, it is important to note that modifications can only be made to a separation agreement if both spouses agree, and in limited situations by court order. It is therefore critical that you try to anticipate how military service will affect your agreement and include contingencies whenever possible.
In conclusion, separation agreements play a vital role in military divorce cases in North Carolina. These agreements provide a structured framework for addressing the unique challenges faced by military couples, including frequent relocations, deployments, and the division of military benefits. By seeking legal counsel, carefully considering the agreement’s content, and accounting for the specific needs and circumstances of each party, military couples can protect their rights and interests. A well-drafted separation agreement not only provides clarity during the divorce but also serves as a crucial tool for ensuring a fair and equitable resolution to the complexities of military divorce in North Carolina.