Pros and Cons of Mediation in Ohio Divorces

The goal of mediation is for you and your spouse to enter into a mediated settlement agreement in an Ohio divorce.

You can reach an agreement as to the entire case or as to specific issues, and leave to the judge those things you cannot agree about. But in all cases, the agreement is put in writing and filed in your divorce case. If you have an agreement before you have filed a divorce case, your mediated divorce settlement agreement will usually be filed with the other divorce papers, essentially making your divorce an uncontested one.

Sometimes, the final agreement may be called a Memorandum of Understanding or sometimes Mediated Settlement Agreement. Regardless of what you name it, the important thing to understand about these mediated agreements is that they are treated like any other contract, and once signed become binding If you change your mind for any reason and later want the judge to relieve you from what you agreed to do, you will have to litigate that. Litigation to try and get a settlement agreement set aside is costly; and depending on the facts of your case, may not be successful.

Divorce Mediation Columbus Ohio

Because these agreements can bind you, it is important that you understand the legal significance of what you are agreeing to.  The only option to understand the legal significance of your agreement is to have an attorney review the agreement before you sign it.  This is not a problem if you are represented by a divorce lawyer since that is what lawyers are supposed to do for you—make sure you understand the legal consequences.

If you have attended mediation without a lawyer, you can still have a divorce lawyer review that mediated divorce agreement for you.  This doesn’t mean hiring a lawyer to do the divorce but simply hiring them to review the agreement with you and answer all your questions or give you a heads up as to what you should be concerned about.

Now that you know more about the divorce mediation process, it will be easier to see the major benefits of using mediation for your divorce.

These major benefits are control, certainty of the outcome, confidentiality, and savings on legal fees.

Control

In a mediation, you and your spouse decide what issues to settle, and with how much detail and flexibility given your individual interests and goals.  Divorce trials, or the litigated divorce process itself, does not leave a lot of control in the hands of the couple getting divorce; control is left in the hands of the judge.

Courts have rules and procedures to follow to make sure there is an opportunity for each side to present their case.  These rules and procedures include time frames to get and present evidence, whether that evidence is documents or witnesses.

A different set of rules for evidence also limits what evidence you can present to the court.

By contrast, in a mediation you and your spouse set the pace of the mediation.  But, perhaps more important, since the rules of evidence do not apply in a mediation, you and your spouse can consider whatever documents you want to present to the other to make sure that everything is fully discussed and decided on by the two of you.

Mediation do have rules or principles, and the mediator will tell you what they are at the start of the mediation; but compared to the rules in the judicial system itself, they are rather few.

Certainty of Outcome

Since in mediation you and your spouse work on getting the results you want, you have a pretty good idea of what the outcome of the divorce will be once you both reach an agreement.  You and your spouse can continue to work together to hash out your differences and get them written into an agreement that will work for you.

Contrast that with the outcome in a divorce trial:  the decisions made in a divorce trial will be made by the judge.  At the beginning of a litigated divorce case you know what you want.  As the case moves along, each of you will have limitations imposed by any number of things, from the cost of getting evidence to the ability to pay for legal fees as the case drags on.  Each of you will have to present evidence as to why the judge should rule in your favor.

But the bottom line is that until the judge renders their decision, you will not know what that decision is or even if it will give you some of the things you wanted.

The biggest downside of that litigated process is that if, after going through a trial, you do not like the result, you will have to appeal the judge’s decision.  This is true whether you disagree with the decision the judge made on one question or on the entire case.

Confidentiality

When it comes to confidentiality, mediating a divorce provides quite a bit more than a divorce trial.

All communication in a mediation is confidential, except for certain exceptions provided by law.

What this means to you and your spouse is that you are both free to engage in discussions to reach an agreement without having to worry that anything either of you say during the negotiations may later be used against you in court.

In Ohio, divorce trials are open to the public.  Court files created in a litigated case are also a matter of public record.  The end result is that the details of your married life are exposed for nearly anyone to learn about.

In a sense, mediation limits what you make public.  Of course, once you and your spouse have reached an agreement and you put that in writing,  the agreement itself is usually not confidential and is filed with the court.

Save on Legal and Other Litigation Fees

If you start at the mediation stage without lawyers before filing for divorce, you may very well end up with an agreement.  Ohio divorces with mediated agreements are uncontested divorces.

Since you are dealing directly with your spouse and without lawyers, each of you will probably save a substantial amount in legal fees.  Since there is no litigation involved, you end up saving on other fees related to litigation such as subpoenas, service of process, court reporters, etc.

If you want to explore using a mediator first, get a list of certified Phio divorce mediators in your area.

Understanding Divorce Procedures in Ohio

Completing a divorce in Ohio can require going through numerous court hearings, participating in court-ordered counseling, and engaging in several rounds of negotiation with your soon-to-be ex. These processes play out over the course of at least three months and can be roughly grouped into the steps of filing, cooling off, securing pretrial orders, negotiations and mediation, and trial. Each divorce proceeding follows its own unique course, however, so having advice and representation from a caring and knowledgeable family law attorney can help you achieve your best outcomes at each step.

Filing for Divorce

Contact the Domestic Relations Court for your Ohio County to request all the forms you need to fill out. Unless you and your spouse mutually agree to end your marriage without contesting any of the reasons and while reaching amicable agreements over custody, property, and support, you must use one of the divorce court forms to state grounds for divorce. These grounds include infidelity, abuse, cruelty, and abandonment.

Filing the first set of forms constitutes making a request for a divorce decree. The court prepares the request and serves the defendant spouse (i.e., the person who did not file) with the papers.

Cooling Off

No divorce trial can be held for at least six weeks after the defendant receives the divorce papers. During this time, the judge handling the case may order you and your spouse to undergo counseling aimed at resolving the issues that led to the divorce filing. Such court-ordered counseling must be completed before a ruling in a divorce trial will be issued.

Disclosure and Pretrial Orders

Early in the cooling-off period, the defendant spouse must respond in writing to claims made in the divorce papers. This is also the period during which each spouse is required to inform the court of all their financial assets, personal and shared property, and interests in maintaining custody of the children. Consulting with an experienced Ohio divorce attorney can help you avoid problems created by not fully disclosing assets and also enable you to protect assets that are not subject to disclosure and division.

The cooling off period is also a time when the judge can issue pretrial orders regarding protection from harassment and abuse, temporary child custody and visitation, and support for a custodial or low-income spouse who lacks sufficient financial resources to maintain a household on his or her own. Each pretrial order may result from a hearing before the judge.

Negotiations and Mediation

Divorcing spouses can often agree between themselves to settle most, if not all, of the issues raised by ending a marriage. Negotiations and mediation can even constitute the entirety of the post-filing divorce process, resulting in a mutually acceptable agreement that a judge must only approve and witness the signing of.

Our family law attorneys explain mediation here. The judge handling the divorce can order that couples try this when he or she suspects that deciding a matter of custody, visitation, or property division in court will serve neither spouse as well as an agreed conclusion. Importantly, your attorney can advise you before, during, and after each negotiation or mediation session, and those discussions are generally protected by confidentiality rules.

Final Hearing and Issuing of Divorce Decree

Matters that cannot be settled by negotiation or mediation are decided by the judge. The court’s decision can be appealed by either party to a three-judge panel. When a court’s decision is considered final, both spouses must sign the resulting divorce decree to make its provisions fully enforceable.

I Want a Divorce but my Spouse is Mentally Ill, How Should I Proceed?

Mental illness recognizably has an impact on a marriage. However, in the State of Ohio insanity, serious mental illness, or drug abuse are not grounds – or reasons – for divorce.  That being said, Ohio is a “no fault” divorce state, and grounds for divorce may be cited as “incompatibility.”

Mental illness will influence issues such as visitation and custody. The court’s primary concern in custody and visitation issues is the best interests of the child or children. Mental health issues will not necessarily disqualify a parent from visitation or even custody. There is, of course, the chance that the parent could receive treatment or the condition may be mitigated by medication.

If the court thinks it is necessary, it can place restrictions to assure the child’s safety. In addition, in extreme situations where a judge would be concerned for a child’s safety with a parent, the judge can order that visitation be supervised. This means that the visit between parent and child would be conducted in someone else’s presence, such as a grandparent or a member of a social services agency. Be aware though, that a court may terminate parental rights all together if it determines that the mental illness is so severe that the parent cannot provide a permanent home for the child, or care for the child. The court will also, in the case of severing parental rights, need to see that the situation will not likely change in a one-year period.

Mental health may also play a role in property distribution and alimony. According to Ohio law, the court must consider a number of factors when determining whether to award support, the amount of support to award, and length of time support will be paid, and one of the factors the court considers in making this determination is the mental health of the spouses.  If the mental illness is so severe as to keep the spouse from being self-supporting, the court may order extra support for that spouse.

It is important to have the best representation possible, with attorneys who are familiar with psychological issues and their impact on the family dynamic.

Central Ohio Divorce Attorney

Do you need an experienced divorce attorney? Whether or not you anticipate any difficulty in your divorce, Edward F. Whipps & Associates is here to help you. If you wish to consider mediation to help resolve your divorce issues, call Edward F. Whipps & Associates to arrange an initial consultation at a mutually convenient time.

Does My Spouse Need To Agree To A Divorce

In Ohio, you may file for divorce based on either “fault” or “no-fault” grounds. No-fault grounds include incompatibility, or living separate or apart without cohabitation for one year. Fault grounds include bigamy, willful absence for one year, adultery, extreme cruelty, fraudulent inducement to marriage, gross neglect of duty, habitual drunkenness, imprisonment in a state or federal institution at the time of the filing of the complaint, or an out-of-state divorce.

While having your spouse agree to the divorce may make coming to agreement on other aspects of the divorce less contentious, it is not essential to have agreement in order to complete the divorce.  The court’s role and goal is the equitable division of any property from the marriage and the custody of your children, if any.

You may file for divorce in Ohio as long as you have lived in the state for a minimum of six months, and resided in the county in which you file for divorce for 90 days.

To begin the divorce process, you file a complaint – making you the plaintiff, and the other spouse the defendant. The defendant is served with divorce papers by the plaintiff, or by a representative of the plaintiff.

The defendant responds to the plaintiff’s complaint with an answer either admitting or denying allegations, and may raise a defense or file counter claims.  If the defendant does not answer, the plaintiff merely presents his or her case for the judge to rule on. Either spouse may request temporary orders for child support, spousal support, temporary custody, visitation rights, or even a restraining order.

The court may hold pretrial hearings to attempt an agreeable resolution. If that cannot be achieved, the court sets dates for discovery, expert reports, and evaluations and the date of a final hearing.

Another way to dissolve your marriage is through a procedure called dissolution.  Dissolution can occur when both parties agree to all terms of the dissolution such as division of the marital property, spousal support and child support, and custody. If all the particulars are already worked out, then you’re simply asking the court to agree with your agreement. This can be a less costly alternative to divorce.

Central Ohio Divorce Attorney

Whether or not you anticipate any difficulty in your divorce,we are here to help you. Contact us to arrange an initial consultation at a mutually convenient time.  You may call or email us online.

How to File for Divorce in Ohio

The decision to file for divorce can be one of the most difficult decisions a person will ever face. Once you have come to the realization that a relationship has moved beyond repair, knowing where to turn for good, reliable answers can be a daunting task. Friends and coworkers may have advice or offer anecdotal information that just serves to fuel anxiety and confusion.

Rather than spending time worrying about what the process might entail, associated costs, or even how to proceed, consider seeking help from an experienced divorce attorney serving the Columbus, Ohio area. An attorney can help you determine which path is best for your situation. Gaining confidence through understanding the process itself is a vital first step.

The Process of Filing for Divorce in Ohio

Divorce is the legal termination of a marriage. It is achieved through a final judgement by the court that a marriage is legally over and will include a finding of fault or reason the marriage has ended. This can include the ‘no-fault’ reason of incompatibility or legally recognized causes such as adultery, extreme cruelty, neglect, abandonment or even imprisonment.

The person who petitions the court for a divorce files the complaint with the court, asking to be relieved of marital duty and to divide assets and obligations within the marriage. The spouse who files this complaint is referred to as the petitioner. The petition for divorce can include deciding who owns which property and investments, as well as who will be responsible for paying which debt obligations in the future.

The other spouse becomes the defendant and gets an opportunity to answer the complaint. They may agree with items in the complaint or dispute them and offer opposing evidence or new counter claims of their own. They may also decide not to respond at all and the judge will make a determination based on the evidence provided by the initial petition alone. Generally, as these cases proceed, the goal is to find acceptable terms for both parties prior to a final review by a judge. This is where the assistance of an experienced attorney can be so vital to the final outcome.

As the initial case moves through the process, it is important to note that spouses may file petitions for child support, temporary custody orders, requests for spousal support or other orders appropriate to their unique circumstances. This can help maintain necessary relief during the ongoing negotiation process and help ensure that both parties are not under duress while negations are underway and the divorce case is still under consideration.

A pre-trial hearing may be scheduled to determine if both parties agree to the specific terms of their case. If anything is still in dispute, the pre-trial hearing identifies those points that will need to be decided at the trial. In these instances, the final discovery process dates are set, witness information is provided, and all final details for a trial will be outlined. As Ohio does not permit jury trials in divorce proceedings, a county judge will hear the case at a later date.

No matter what may have caused you to consider divorce, taking the next step can be made easier with the skillful guidance of a qualified divorce attorney. Your situation is unique and your very real concerns deserve individualized attention. Step away from the anxiety and consult with an expert dedicated to ensuring you have the accurate information you need to begin making a solid plan to move forward.

Contact the Columbus, OH Divorce Attorneys

Our attorneys have been focused on helping families like yours for over 30 years. Call or email to discuss your specific circumstances and concerns with one of our seasoned attorneys.

Guide to Spousal Support & Alimony in Ohio

The periods before, during, and after a divorce can be devastating for all parties involved. The courts take this into consideration and offer aid that can reduce the financial impact of divorce. Financial assistance that provides such support is called alimony, or spousal support in Ohio.

Spousal support is financial assistance paid from one former spouse to another. The spouse who is at a financial disadvantage will receive financial assistance from the former spouse who is at a financial advantage. This assistance helps them maintain the standard of living they had during the marriage and gain financial independence.

Spousal support laws vary by state. That’s why it’s important to speak with a Columbus, Ohio divorce lawyer to determine whether your divorce should include a request for spousal support.

Requirements for Receiving Spousal Support in Ohio

There are no set guidelines for spousal support in Ohio. The court determines the amount and duration of the support on a case-by-case basis. Either spouse may seek spousal support, whether husband or wife. Who it will be awarded to is based solely on the income and resources of both spouses.

In the past, spousal support was primarily sought by ex-wives and paid by ex-husbands, but times are changing. Over the past decade, as women obtain more lucrative careers and salaries in the workplace, there has been a significant rise in the number of men who seek and are awarded spousal support.

When Spousal Support Should Be Sought

It’s a popular misconception that spousal support is involved in every divorce case, but the truth is that financial assistance from a former spouse is not always required. But in certain instances when a marriage ends, spousal support is very necessary.

If a couple that has been legally married gets divorced or legally separated, the spouse who is at a financial disadvantage may seek a court order for spousal support. Spousal support payments can help a spouse with necessary living expenses such as rent, mortgage, food, clothing, transportation costs, and medical costs.

Although the two are often confused, spousal support and the division of marital property during divorce proceedings are not one and the same. In Ohio, spousal support is determined after the division of marital properly has taken place.

How Spousal Support Is Determined in Ohio

The Court of Ohio is responsible for determining the fairness of each spousal support order. Support may be in the form of financial payments as well as real estate or personal property. Support may be paid in lump sums or in installments.

Payments may also be deducted through a spouse’s federal taxes. All spousal support is tax-deductible for the spouse providing the support payments. Any spouse who receives the spousal support payments is required to report all payments received as income and is fully responsible for paying taxes on them.

In determining the recipient and amount of spousal support to be awarded in Ohio, the court must take the following 14 factors into consideration:

  • The income of both parties (including income earned from property awarded in the divorce proceeding)
  • The earning abilities of both parties
  • The ages and well-being (physical, mental, and emotional) of both parties
  • The retirement benefits of both parties
  • The length of the marriage
  • The ability of the spouse who is custodian of a minor child from the marriage to seek employment outside of the home
  • The standard of living that both parties established during the marriage
  • The level of education of both parties
  • The assets and liabilities of both parties, including any court-ordered payments
  • Any contribution of one party to the education, training, or earning ability of the other
  • The expenses and time necessary for the party seeking spousal support to gain education, training, or job experience that would make them qualify for gainful employment
  • The potential tax consequences that spousal support could have on both parties
  • The loss of or the negative impact on the ability to produce income resulting from performing marital responsibilities
  • Any other fact that the Court of Ohio finds relevant

If you’re seeking spousal support payments, get in touch with the experienced spousal support attorneys have been working on spousal support cases for over 30 years. To schedule a confidential legal consultation, please call or email.

How does cheating affect your divorce settlement

Divorce proceedings are a difficult and trying time where emotions can run high.  The turmoil of divorce can be made worse if you learn your spouse has been cheating on you.  Even if the indiscretions do not trigger the divorce, having a cheating spouse can be psychologically damaging and can lead to additional stress during the divorce.   Many people will ask lawyers what the legal impact of a cheating spouse can be.  The majority of Columbus, Ohio divorce lawyers will say that it has little affect in the courtroom, but a huge affect when negotiating a settlement.

Ohio Divorce Law : Adultery

Unless the court discovers financial misconduct, Ohio is generally a no-fault divorce state.  In no-fault states, the court isn’t looking to place blame during a divorce hearing, so the court tends to ignore instances of cheating, focusing instead on the dissolution of the marriage.  If there is financial misconduct, and the cheating spouse spends marital assets on his or her paramour, the cheating partner will have to pay up.  The courts will likely award an additional amount to the faithful spouse to compensate for the expenditure of joint funds.  This is generally rare, as the majority of cases don’t require the extra step of going to court.

Wife Cheated Divorce Settlement

The real impact of cheating during divorce proceedings occurs when you settle a case out of court.  Since the overwhelming majority of cases settle outside of the courtroom, the spouse who was cheated on often has a great advantage in negotiating the settlement.  Generally the unfaithful spouse will feel remorseful and often quick to acquiesce to the requests of the other spouse. Guilt and other emotions often come into play during negotiation settlements, giving one spouse an advantage that he or she will surely take.

This is why finding the right Ohio divorce lawyer is so important.  They will make sure that if you are the cheating spouse, you still focus on a positive outcome while negotiating.  Adversely, if you are the faithful spouse, and you feel you deserve more of the marital assets because of the indiscretion, the right attorney will be able to fight and negotiate for you to get you what you want.  It is important not to let emotions get away from you during negotiations.  Proper legal representation will keep you focused on the matter at hand and help you keep your emotions away from the negotiation table.

The last and most important question that people with children ask is what effect does a cheating spouse have on custody arrangements.  Generally if the divorce proceedings progress to court, the judge will look at the impact that the indiscretion had on the child.  Did the child witness the affair, has the new boyfriend or girlfriend of the cheating spouse been convicted of a crime?  The court must ask questions like that to ensure the child is placed in a safe environment after the divorce proceedings.  If the matter is settled out of court, then it is important that you discuss with your attorney any incidents that you felt put your child at risk.  Again, find an attorney who specializes in family law to help you navigate the common pitfalls of Divorce.

Enforcing an Ohio Divorce Decree

Signing a divorce decree obligates you and your former spouse to fulfill each of the agreed-upon conditions. While circumstances may make minor, occasional, and unintentional violations unavoidable and forgivable, resolving long-term problems requires going back to court to compel compliance. Three reasons you may need to enforce a divorce decree are when your previous partner:

  • Stops making spousal support (alimony) and child-support payments
  • Refuses to allow visits with your children or keeps your kids longer than specified in divorce papers
  • Retains more proceeds from the sale of shared property or refuses to surrender listed items

Even when you and your ex agree that sticking to the original terms of the divorce no longer makes sense, deciding to alter arrangements without going back to court constitutes a violation. This means, for instance, that if a move by the custodial parents from Ohio makes stays with the other parent on alternating weekends impractical, you should petition the court to alter visitation rights.

Things to Understand When Seeking to Enforce a Divorce Decree

You must document every violation by your former spouse. This means, among other things, keeping copies of late and/or short support payments, details of checks returned for insufficient funds, and evidence that payment could have been made. The Ohio Department of Job and Family Services maintains an Office of Child Support in every county. Staff there can help you explore nonjudicial options to secure payments and, if necessary, build a court case.

The results of being found in violation of a divorce decree can be harsh. Civil judgments can include

  • Orders to pay all past-due spousal support and child support with interest and penalties
  • Orders to pay the complaining spouse’s court costs
  • Garnishment of wages
  • Revocation of visitation rights
  • Forfeiture of property

Spouses who do not make support payments despite having adequate financial resources can go to jail. Refusing to abide by visitation agreements can also result in jail time for contempt of court, with the length of the sentence left to the judge’s discretion.

A third possibility is that a judge can find a former spouse in violation of the divorce decree but impose no immediate penalty. One acceptable excuse for failing to pay child support for a certain period could be unemployment due to incarceration or temporary disability. Recognize, however, that leaving Ohio does not automatically relieve a custodial parent of the duty to adhere to a child visitation schedule.

Work With a Columbus Family Law Attorney to Enforce Your Divorce Decree

Ohio law permits individuals to file petitions for the enforcement of divorce decrees on their own. Taking legal action against a former spouse with the help of an experienced Columbus family law attorney, however, could enhance your chances of success. We cannot guarantee any outcome, but our attorneys know which forms need to be completed, when they need to be delivered, and who must receive the paperwork to get it the attention it deserves. We also know which questions to ask to ensure all the necessary evidence gets collected and presented to make your case for a civil or criminal judgment as strong as possible.

If your ex has not fulfilled his or her obligation under your divorce decree, call us

How to Protect Your Retirement Assets in an Ohio Divorce

In any divorce, finances and property division can get ugly—especially if one person makes more than the other. It’s risky to assume your retirement assets are secure when you divorce, and you won’t realize how much you stand to lose until it’s too late. Central Ohio divorce lawyers can advise you on what to do when it comes to protecting your retirement assets. However, there are steps you can take to help secure your retirement assets during a divorce.

Know Ohio’s Divorce Law Regarding Property

All states have different laws regarding property during a divorce. For Ohio divorce law, most property falls below “equitable distribution of property,” which means any funds received during the marriage by either spouse are subject to equitable division. However, according to Ohio law, specific property not subject to division includes:

  • Any funds that were earned prior to the marriage by either spouse, and that spouse is entitled to keep it
  • Income generated by passive means
  • Any property attained after the divorce is finalized
  • Inheritance for either spouse

Other factors under Ohio law can impede a 50/50 division of property, but these factors are carefully considered by your attorney and the court. Your attorney will discuss which factors affect your assets in detail with you, which is why it’s crucial to keep current financial records of your property. These factors include:

  • Marriage length
  • Age and physical health of both spouses
  • Property or income purchased by each spouse
  • The standard cost of living for each spouse
  • Any agreements made between spouses during the marriage concerning property

It’s imperative to know which factors will affect you during the divorce. It’s also a good idea to restrict retirement accounts from receiving additional funds, and record all monetary deposits and withdrawals.

Stop Contributing to Your 401(k) and IRA

Don’t expect your 401(k) or IRA to be completely protected from division. When the idea of “divorce” begins to float around in your home, stop making any monetary contributions to your IRA or 401(k). These retirement accounts would be divided between each spouse, especially if your husband or wife made any contributions.

It’s also vital to ask your employer to stop making contributions to your retirement and savings accounts. Some individuals lose over half of their contributions after the divorce only because they continued investing money into their retirement and savings accounts.

Monitor and Record all Your Debts and Assets

Take an inventory of everything you own: your financial assets and debts. You need to record all your financially-owned assets, and to know where your money is at all times and where it goes. Keep copies of credit accounts and loans, and note any funds that were recently received or removed. Also, make notes of home equity, business debts, and tax returns. Anything you have purchased, invested or contributed should be accurately recorded prior to the divorce proceedings.

Hire a Divorce Attorney in Central Ohio

The most important step is to hire an attorney. Central Ohio divorce lawyers are skilled and knowledgeable in divorce law, and they will take the necessary steps to help you protect your retirement assets during divorce proceedings. Your lawyer will guide you through the process beginning with recording your accounts to finalizing the divorce and signing the papers.

Need an experienced divorce attorney to help you? Edward F. Whipps & Associates is a seasoned law firm with over 30 years of experience aggressively protecting our clients’ retirement accounts.

What Are the Rights and Benefits of Former Military Spouses?

Divorce is a stressful and complicated time for anyone, but it can be a particularly trying experience for military spouses, who are often stationed far away from their friends and loved ones while facing divorce proceedings. Military divorces pose unique issues. Many spouses divorcing a service member are concerned about whether the benefits they enjoy as military spouses will continue after their divorce.

The law typically allows for a military divorce to be filed in the state where either the husband or wife has legal residence. This generally means that the person who started the divorce files in the state where he or she is a resident. It’s important to bear in mind that the state where a military member resides has the ability to divide the military pension in a divorce. Therefore, if you file for divorce in a state that isn’t the state of residence of the military member, then the court may not be able to divide the pension.

Overview of the United Services Former Spouse Protection Act

The Uniformed Services Former Spouse Protection Act (USFSPA) addresses concerns that military spouses may have about their rights and benefits after a divorce. Under the USFSPA, a former spouse can be designated as a Survivor Benefit Plan (SBP) beneficiary. SBP is an annuity that allows retired service members to provide continued income to the beneficiary in the event of their death. Retiring service members are enrolled in SBP unless they choose not to participate.

The USFSPA also allows former spouses to continue receiving commissary, exchange, and health care benefits after a divorce. In order to qualify for these continued benefits, a former spouse must prove the following:

  • The service member has 20 years of creditable service
  • The marriage lasted at least 20 years
  • The marriage overlapped with the period of service for at least 20 years

A former spouse meeting these requirements is referred to as a 20/20/20 former spouse. A 20/20/20 former spouse receives full health care, commissary, and exchange benefits. The health care benefits are provided through TRICARE and military treatment facilities. Former spouses who do not meet the 20/20/20 requirement will lose their commissary and exchange privileges as soon as the divorce is final.

If a service member has 20 years of creditable service and the marriage lasted 20 years, but the marriage overlapped with the period of service by only 15 years, then the former spouse will only be entitled to full medical benefits for one year following the divorce. These former spouses are known as 20/20/15 former spouses. In order to maintain full coverage, however, the former spouse cannot remarry or join an employer-sponsored health plan. After this one-year transitional period, the 20/20/15 former spouse will be eligible to purchase a conversion health policy negotiated by the Department of Defense.

Former spouses who are not 20/20/20 or 20/20/15 are not eligible for any military health benefits after a divorce, but they are eligible to receive temporary health care coverage from the DOD Continued Health Care Benefit Program, which provides 36 months of coverage. In order to qualify for this coverage, a former spouse must enroll within 60 days of losing full military health care benefits.

Are Former Spouses Entitled to a Portion of Retirees’ Retired Pay?

There is no law that automatically entitles a former military spouse to a retiree’s military retired pay. Nevertheless, a former spouse is eligible to receive direct payments from a retiree’s retired pay if the court order satisfies specific requirements and conditions.

State courts are authorized to divide military retired pay as a marital asset or as community property in divorce proceedings. In order for a former spouse to qualify for direct payments of retired pay under the USFSPA, the former spouse must have been married to the service member for 10 years or more and the service member must have had at least 10 years of creditable service during that time.

Speak with a Columbus, Ohio Military Divorce Attorney

If you have any questions about your rights and benefits as a former military spouse, don’t hesitate to get in touch. We are a Columbus, Ohio military divorce attorney with extensive experience handling divorce cases on behalf of service members and military spouses.