Myths Concerning Divorce For Military Members In Washington State

A divorce concerning someone in the military is understandably more complex than a divorce for a civilian as it is affected by a number of federal laws concerning military members. Below are a number of myths or misperceptions that are commonly heard.

Myth 1: I am in the military. Don't I need a "military divorce"?
     Reality: Military members and those retired from the military may only obtain a divorce from the state courts, in a manner similar to that of a civilian. There is no such thing as military divorce.

Myth 2: The spouse of a military member automatically receives a portion of the military retirement based on the number of years married while in the military divided by the total number of years in the military.
     Reality: The trial courts are not required to use any particular formula, and often do not. The court can base the division of the retirement on the date of separation and allocate a little or no portion to the non-military spouse if there are other assets in the marriage.

Because a military retirement can have a value well in excess of $100,000, great care must be taken when determining the present value of the retirement so it can be compared to other assets of the marriage.

Myth 3: While the military member is separated from the spouse, the servicemember must make a large allocation to the spouse.
     Reality: While the parties are separated, there is no requirement under state law for one party to send the other funds. Of course, there are often military regulations that may require a transfer payment depending on the circumstances of the case. However, the allotment set by the servicemember before the separation is often greatly in excess of what is required.

Myth 4: Delaying the filing of a divorce will benefit the servicemember
     Reality: This statement is almost never true. Although one should not file for a divorce prematurely, delaying the divorce will often increase the size of the claim that the spouse will be able to assert against the military retirement. The spouse's claim for maintenance will also likely increase under Washington law as one of the factors that is considered is the length of the marriage.

Myth 5: Sending a large sum of money in a lump sum payment to the spouse of the servicemember will "pay off" the spouse from future claims. Setting up a large allotment to the spouse will benefit the servicemember.
     Reality: Making a single or multiple large sum payment to the other party often does little to benefit the servicemember. After the payment is made, the court could still enter an order setting child support and/or maintenance. The court will likely not permit the servicemember to receive an offset for the earlier payment made. Furthermore, the spouse of the servicemember will likely try to characterize the payment as payment on debt.

Setting up a large allotment, significantly above what is necessary, is unwise as it increase the expectation for the spouse to continue to large payments on a long term basis. The court may later conclude that the servicemember has a large ability to pay a significant amount of maintenance for a long duration.

Myth 6: I am stationed oversees. I should wait to file for a divorce until I am back in the United States. Right?
     Reality: With modern technology, a divorce can be initiated while oversees in any part of the world with a competent attorney, assuming the court has jurisdiction over the case. Also see the other danger cited above in response to Myth # 4.

Myth 7: An effective divorce can be accomplished by downloading forms off of the Internet.
     Reality: The blank forms online are only a small part of the divorce process and the considerations for obtaining a dissolution. An analogy is the case where someone might obtain dental instruments and a manual on dental procedures and attempts to perform their own dentistry. However, few people would be able to produce acceptable results.

A skilled attorney in Washington is versed in Washington State law and how the Washington courts interpret the law. There are often additional considerations should the divorce concern real estate, retirement plans, or if one of the parties is, or has been in the military. Furthermore, Washington Civil Rules issued by the Washington Supreme Court must be followed if one is to receive relief from the court. Many counties, including Pierce, King and Kitsap County have local court rules issued by court system that must be strictly followed as well if one is going to obtain any relief from the court.

Finally, an improperly obtained divorce can many times be set aside by the court at a later time if something was done improperly. This can be very time consuming and expensive.

As a general principle, people are entitled to represent themselves in either criminal or civil court. However, whether it is a wise choice is another issues. A skilled Washington attorney typically has a four year undergraduate degree, three years of law school, a knowledge of Washington statutory law (RCWs), a knowledge of Washington case law (Washington State Supreme Court and Court of Appeals cases), the general Washington Civil Rules of Civil Procedure, and the local court rules of the county where he is representing the client. Finally, the attorney should know the law concerning real estate, if necessary and any applicable Federal Statutory and case law.

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