The SCRA applies to servicemembers serving on active duty military, and National Guard or reserve members who are activated for more than 30 days, and provides an entitlement for delay and counsel. The SCRA was a law designed to ease financial burdens on servicemembers during periods of military service. It covers various issues such as rental agreements, security deposits, prepaid rent, evictions, installment contracts, credit card interest rates, mortgage interest rates, mortgage foreclosures, civil judicial proceedings, automobile leases, life insurance, health insurance and income tax payments. But for our purposes we will look at the benefits provided to servicemembers related to civil judicial proceedings, such as a dissolution of marriage action.
Stay: A minimum stay of 90 days shall be entered by the Court if requested by the servicemember or upon the court’s own motion if the court determines that (1) there may be a defense to the action and a defense cannot be presented without the presence of the defendant or (2) after due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists. The stay is not meant to punish the family but to protect the servicemember, so good faith is required to claim protections under the SCRA.
Right to Counsel: The SCRA also provides that the member has a right to court-appointed counsel if the member is not representing himself/herself.
Unlike the jurisdictional requirements to hear a divorce petition (6 months of residency), the requirements necessary for a court to order one spouse to pay the other any amount of spousal support are stricter. A Florida court cannot order one spouse to pay alimony to the other spouse if the other spouse has never established any sort of minimum contact with Florida. This is called ‘personal jurisdiction.’ For example, if Amy and John spent their entire marriage living apart and John never visited Amy in Florida, never conducted any business in Florida, or never established some “minimum contacts” with Florida, then Florida cannot order John to pay Amy any alimony.
Note: nothing would stop Amy from filing for divorce and seeking alimony in Georgia, if that is where John is living. Amy could also simply file in Florida and not seek alimony.
Florida divides alimony into 3 stages, short term (less than 7 years), moderate term (more than 7 but less than 17 years), and long term (more than 17 years). Florida provides that there is a rebuttable presumption (an assumption made by a court that is taken to be true unless someone comes forward to contest it and prove otherwise) against alimony for marriage of short duration (but not moderate or long duration). Due to the lifestyle of military families and the necessity to move during a member’s career, military spouses are sometimes given special alimony considerations if they have given up a career or life choice to follow their military spouse around to comply with the obligations of military duty. Therefore, even if the parties have been married less than 7 years, if a party has given up a career and/or made a life choice to further their spouse’s career because of military duty, then a party may be entitled to alimony.
Tax Cuts and Jobs Act (TCJA) and its effect on alimony. TCJA repeals the deduction for alimony paid and the inclusion of alimony as income for tax purposes. The TCJA treatment of alimony payments will apply to payments that are required under divorce or separation instruments that are: (1) executed after Dec. 31, 2018 or (2) modified after that date if the modification specifically states that the TCJA treatment of alimony payments now applies.
There are numerous other issues and choices specific to military pensions and military divorce in general. Because there are options and alternatives with military divorce, the prudent military member or spouse considering a divorce should seek an attorney with experience and understanding of these unique military issues.