Military Divorce Issues Involving Custody and Retirement Benefits
Custody and retirement benefits are the hardest parts of most divorces, and military service complicates both. Permanent change of station (PCS) orders and deployments shape what a workable parenting plan looks like, while federal law controls how retired pay, the Thrift Savings Plan, and survivor benefits are divided.
At Columbia Family Law Center, we help service members and military spouses across Washington handle both. Schedule a consultation before you agree to a parenting plan or settlement, since drafting mistakes are far easier to prevent than to fix. Call our attorneys for assistance.
Which Court Decides Custody for a Military Family
Under the Uniform Child Custody Jurisdiction and Enforcement Act, the child's home state generally makes the initial custody decision. This home state is where the child lived with a parent for the six months before filing.
A service member stationed at Joint Base Lewis-McChord can file for divorce in Washington. Still, if the children only recently arrived from another duty station, Washington may not yet be their home state. Temporary absences in military custody, such as a deployment, generally count toward those six months.
How Washington Protects Service Member Parents
Under Washington's parenting plan statute, a parent's military duties alone are not a substantial change in circumstances justifying a permanent modification. The law also addresses deployment directly:
Temporary orders end on return. If the primary residential parent deploys, any temporary order ends no later than ten days after that parent gives notice of return, absent an emergency motion.
Residential time can be delegated. A deploying parent can ask the court to delegate their time to a family member, including a stepparent, or another person close to the child.
Federal law adds the Servicemembers Civil Relief Act, which lets an active-duty member apply for a stay of at least 90 days in custody proceedings with a statement about their duties and a letter from their commanding officer. The stay isn't automatic, and courts weigh it against the child's need for stability. When duties limit a parent's ability to appear in person, the court may also allow testimony by electronic means.
Building Military Life Into the Parenting Plan
Because deployments, training, and PCS orders are typically predictable, the most durable parenting plans address them from the start: how residential time shifts during a deployment, how make-up time works, how children stay in contact by video, and what long-distance schedule applies after a move. Planning extended summer and holiday time in advance means a PCS move does not automatically send the parents back to court.
Military orders do not waive Washington's relocation statute, so a parent planning to PCS with the children should start the notice process well before the report date. Single and dual-military parents must also keep a Department of Defense Family Care Plan, which should match the court's parenting plan.
Child Support and Children's Benefits
Military pay includes base pay plus allowances such as housing and subsistence, which may factor into Washington's child support calculation. Because these amounts change with rank, location, and duty status, the Leave and Earnings Statement deserves a careful review.
VA disability compensation cannot be divided as property, but the U.S. Supreme Court has held that states may count it as income for child support. Children generally keep TRICARE and military ID privileges as the member's dependents after divorce, regardless of the marriage's length. The support order should still say who handles enrollment and uncovered medical costs.
Dividing Military Retired Pay
The Uniformed Services Former Spouses' Protection Act lets a Washington court divide retired pay earned during the marriage, but only if the member resides here for reasons other than a military assignment, is domiciled here, or consents to the court's jurisdiction.
A court that can grant the divorce may still lack power over the pension. Several federal rules then apply:
Frozen benefit rule. For divorces finalized after December 23, 2016, while the member is serving, the divisible amount is generally based on rank and years of service at divorce, not at retirement.
10/10 rule. DFAS pays a former spouse directly only if the marriage overlapped at least ten years of creditable service.
50 percent cap. DFAS will not pay more than 50 percent of disposable retired pay as property division.
A VA disability waiver can also shrink the divisible amount, and under Howell v. Howell, state courts cannot order the veteran to make up the difference. Spouses should understand this risk before agreeing to a percentage of retired pay alone.
The Thrift Savings Plan, Survivor Benefits, and TRICARE
A Thrift Savings Plan account, often holding Blended Retirement System matching contributions, is divided through its own court order, separate from the DFAS order. If the retired pay order covers the TSP, it can leave part of the marital estate undivided. Two other benefits depend on follow-through:
Survivor Benefit Plan. DFAS generally must receive a deemed election within one year of the court order awarding former spouse coverage.
TRICARE for the former spouse. An unremarried former spouse keeps coverage only if the marriage lasted at least 20 years, the member served at least 20 creditable years, and the two overlapped by at least 20 years; a 15-year overlap earns one year of transitional coverage.
Because these benefits can disappear on technical grounds, a settlement that looks fair on paper can still fall short if the orders are vague or you miss post-decree filings.
Work With Columbia Family Law Center on Your Military Divorce
Custody and retirement issues in a military divorce reward careful planning. A parenting plan that anticipates deployments and moves, along with property orders drafted to federal standards, prevents most of the disputes that otherwise surface years later.
For more than 30 years, Columbia Family Law Center has served families in the greater Tacoma area, the Puget Sound region, and throughout Washington. Our attorneys handle military divorce, military custody, and the division of military retirement assets, from deployment-focused parenting plans to pension and TSP orders that will be accepted.
We offer military families a 25% discount. Meet with our military divorce attorneys at our offices in Federal Way, Tacoma, and Bellevue. Contact us to schedule a consultation, and bring your service records, orders, Leave and Earnings Statement, and any existing parenting plan.
