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DIVORCE AND FORMER SPOUSE LAW

This pamphlet seeks to answer frequently asked questions about divorce in Georgia and about

the Uniformed Services Former Spouse' Protection Act. Even in uncontested cases, divorce is a

legally involved process that causes emotional and financial strain on the parties and their

families. Therefore, it is important to seek legal counsel if an individual contemplates a divorce.

Take the opportunity to consult with an attorney in the Robins Air Force Base (AFB) legal office

There are thirteen statutory grounds for divorce in Georgia. Included among these grounds are

adultery, desertion, cruel treatment, habitual intoxication, and habitual drug addiction.

The statutory ground most commonly used for divorce is that the "marriage is irretrievably

broken," which is commonly called the "no fault" ground. For this ground, the parties do not

specifically complain of each other's conduct, but merely state that their marital differences

cannot be reconciled and they no longer live together.

In Georgia, you must be legally separated before you file for divorce. Although you do not need

a formal court-ordered separation, you must intend to be separated and discontinue all sexual

state of Georgia for six months – either the resident spouse may file or the nonresident spouse

may file if the Defendant spouse has been a resident for six months. This period is extended to

one year for any person residing in Georgia on a military reservation. Second, Georgia was the

last domicile of the marriage.

HOW DOES JURISDICTION WORK?

Jurisdiction means whether or not a court has the authority to take “control” over something. In

a divorce action, there are two types of “things” that the Court must have “control” over to

establish an order. First, the court establishes control over the marriage itself through the

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should ask your attorney if you think jurisdiction may be a problem.

WHERE DO I FILE?

A complaint for divorce should be filed in the Superior Court of the defendant’s county of

residence or, if the defendant has recently moved from the state of Georgia, in the county of the

plaintiff’s residence. This would be considered the domicile of the marriage. Upon the

defendant’s consent, the complaint may be filed in the plaintiff’s county of residence regardless

county adjacent to the post or reservation.

HOW LONG DOES ALL THIS TAKE?

The length of time involved will depend on whether the action is contested, and if so, how much

the process is slowed down by the tactical maneuvering of the parties and their attorneys.

However, the process can be quite short in some situations. If both sides are in complete

agreement on the division of property and custody of the children, and they file an agreement on

There is often a time delay between filing for divorce and actually getting before a judge for a

trial. During this delay, either spouse may request a hearing where the judge can make a

temporary order covering issues like child custody and visitation, alimony payments, or property

rights. This temporary order must be followed until the final order is given by the trial judge.

WHAT HAPPENS AT TRIAL?

Questions of child custody and visitation are decided by the judge. The financial issues, such as

division of property, division of debts, alimony and certain findings concerning child support are

Financially, marriage is similar to a business – assets and liabilities are incurred and must be

appropriately accounted for when the business (or marriage) dissolves. Georgia is an “equitable

distribution” state. This means that the court will review all the assets and earnings accumulated

during the marriage and assign a percentage to each spouse based upon its discretion for what is

equitable. Please remember that equitable does not necessarily mean equal.

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The court will first categorize the types of property belonging to the parties. Marital property is

all property acquired with assets belonging to the marriage, including wages, items acquired

using income earned during the marriage, or individual property converted to marital property.

Non-marital property includes items acquired before the marriage or assets belonging to one

specific spouse acquired from a third party by gift or inheritance. Mixed property is usually

treated as marital property. Only marital property is considered in the equitable distribution.

A claim for division of property can be tried before a court, or the parties may agree upon a

HOW DOES ALIMONY WORK?

Alimony is a payment made by one spouse to another for support or maintenance. Either the

husband or the wife may be awarded support from the other based on a series of factors

considered by the court. The court may consider length of the marriage, a spouse’s ability to

support himself, educational opportunity, child support payments, or financial resources when

making this determination.

The payment method of alimony may also be determined by the court. Alimony can be paid

periodically or in one lump sum.

WHO GETS CUSTODY OF OUR CHILDREN?

Few issues cause more concern for the courts and consternation for the parties involved than

custody, visitation and support of minor children. In all cases in which an application for divorce

is pending or a divorce is granted, the court may look into all the circumstances of the parties and

determine custody. The court will consider the happiness and welfare of the child to determine

what is in the best interest of the child.

selection would not be in the best interest of the child.

As the child grows and the family situation changes, the needs and requirements of visitation

change. The court may not review the issue of visitation or modify or alter visitation without the

petitioning parent showing that there has been a material or substantial change in condition of

either party or the minor.

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Legal custody means that parent has the right and responsibility to make major decisions

involving the child. Physical custody means that the parent has the right to time and contact with

the child and can make day to day or emergency decisions involving the child. The court may

award either type of custody to one or both parents. Be aware, that without legal custody, you

would not have the right to make decisions about where to send the child to school, what religion

the child should practice, or even what medical care the child should receive.

In January of 2008, Georgia law began to require all divorcing parents to develop a parenting

may file a joint plan. Otherwise, each parent must file their own plan with the court.

HOW DOES CHILD SUPPORT WORK?

It is the joint and several duty of each parent to provide for the maintenance, protection and

education of his or her child until the child reaches the age of majority, except to the extent that

the duty of one parent is otherwise or further defined by court order. A child in Georgia reaches

majority at 18 years of age. This support obligation can also end if the child marries, dies, or

unusual expenses or on what is in the best interest of the child. This final amount is then

proportioned between the parents based on their contribution to the overall gross income. So, if

the mother contributes 60% of the gross income to the original calculation, she is responsible for

60% of the child support obligation while the father is responsible for the remaining 40%. For

more information, please see the “Child Support Enforcement” Pamphlet in the legal office, call

the local Office of Child Support Services, or go to the Georgia Child Support Commission

website.

Fax: 478-988-7727

Email: [email protected]

There is a link to a child support calculator formatted in Microsoft Excel from the

Georgia Child Support Commission: http://csc.georgiacourts.gov/

Some of the factors that should be considered in adjusting the contribution amount are: how

long will support last, medical expenses, dental expenses, education expenses, and income tax

consequences.

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an income deduction order, a lien, garnishment, and if a parent is more than 60 days behind in

child support the other parent could request that the court suspend a license. (Licenses include

driver’s, professional, hunting, or fishing)

There are alternate methods for the enforcement of child support. The Uniform Interstate Family

Support Act allows a district attorney to acquire child support from an obligated parent. Also, if

a parent does not pay child support for more than 30 days, he or she can be charged with the

criminal offense of abandonment.

A party may request that the court restore a maiden or prior name.

WHAT ABOUT WILLS AND LIFE INSURANCE?

Once a divorce has been granted, it is recommended that a new will be executed. Also, do not

forget to change the beneficiary on your life insurance policies.

The official name of the "Former Spouse Law" is the "Uniformed Service Former Spouses'

Protection Act." The USFSPA (Public Law 97-252) is codified at 10 U.S.C. Sections 1072,

1076, 1086, 1408, 1447, 1450, and 1451. Passed by Congress in 1982, this law gives former

spouses of military members certain rights and benefits after a divorce. There are two main

aspects of the law. The first part involves the spouse's rights regarding the military member's

retired pay. The second part concerns the use of certain military entitlements by former spouses.

HOW DOES THE LAW AFFECT RETIRED PAY?

The law does not create an automatic entitlement to a member's retired pay. A court in a divorce

1. His or her residence other than by reason of military assignment in the territorial

jurisdiction of the court; or

2. His or her domicile in the territorial jurisdiction of the court; or

3. His or her consent to the jurisdiction of the court.

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HOW MUCH OF A SERVICEMEMBER’S RETIRED PAY CAN BE AWARDED?

Although a court may award a former spouse as much of a member's retired pay as it deems

reasonable, there is a maximum percentage that a military finance center will honor and send

directly to the former spouse. Generally, the standard maximum percentage is 50 percent.

However, this can be extended to 65 percent if the amount awarded includes alimony and/or

child support.

For example, if the service member is already making a court-ordered payment of 30 percent of

retired pay, only 20 percent may be ordered under the Former Spouse Law for the second former

spouse. Remember, however, that the cap does not prohibit a court from considering the

retirement as income or from ordering the member to make the payments to the former spouse--it

merely means that the former spouse will not receive more than 50 percent directly from the

military finance center.

If the order became effective before February 3, 1991, there is a 65 percent cap if more than one

less certain deductions. These deductions include amounts owed to the United States for

previous overpayments of retired pay and recoupments required by law resulting from the

entitlement to retired pay. With regard to divorces, annulments, and legal separations effective

before February 3, 1991, deductions can also be made for federal, state, and local income taxes

and for other debts owed to the United States. However, these deductions have been eliminated

with regard to all decrees, which are effective on or after February 3, 1991.

NOTE: Disability is not considered part of the disposable retired pay.

HOW IS THE FORMER SPOUSE’S SHARE COMPUTED?

during the marriage. The part of retired pay "accruing" during the marriage is called the

questions:

Example 1: MSgt A served 20 years on active duty, then retired. During his service, he was

married to Mrs. A for 8 years. The community share of MSgt A's retired pay is 8/20 or 2/5 (40

percent) of his total retired pay. Since the marriage was for only 8 of the 20 years of service,

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entitled to one-half of the community share, or 20 percent of MSgt A's retired pay.

Example 2: Major B and her husband, Mr. B, have been married for 24 years. Major B retired

after 22 years on active duty. The community share of Major B's retired pay is 22/22 or 100

percent of her total retired pay. This is because the B's were married for the entire period of

Major B's service. Upon divorce, Mr. B is entitled to one-half the community share, or 50

percent of his wife's retired pay.

Years of marriage during service

_________________________________ X ½

Years of service

HOW AND WHEN IS THE SHARE RECEIVED?

A court must order the division of retired pay as part of a property settlement upon divorce or

member must make arrangements for payments to be made. If the member fails to make

payments, then the retired pay may be garnished.

WHAT IF THE FORMER SPOUSE DIES OR REMARRIES?

The former spouse has only a life interest in the retired pay, so payments terminate when the

former spouse dies. Furthermore, the payments would also stop at the death of the retired

member. The payments DO NOT terminate if the former spouse remarries.

WHAT IF THE DIVORCE TOOK PLACE BEFORE THE LAW WAS PASSED?

military retiree and his or her former spouse, then a state court may not subsequently divide the

a court had issued an order dividing previously undivided retired pay before June 25, 1981, the

affected retiree must still make any payments, which were due under such order prior to

November 1990, and continue to make such payments until November 5, 1992.

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Full privileges for 20/20/20 spouses (meaning the military member served a minimum of 20

years of qualifying service for retired pay with the marriage and the qualifying service

overlapping for at least 20 years).

1. Lost upon former spouse's marriage.

2. Regained upon termination of subsequent, disqualifying marital or death of subsequent

3. Spouses failing to meet 20/20/20 rule get no such privileges.

1. The 20/20/20 rule states a spouse gets care if the spouse:

a. is not covered by an employer-sponsored health plan,

before 1 April 1985. All 20/20/15 divorcees can be covered under Tricare for one year

and 20/20/20 divorcees’ Tricare are covered for life.

NOTE: Determining creditable service for eligibility to retired pay and the overlap with the

marriage is complex, especially if the member has reserve or guard time. Do not assume because

a spouse has been married at least 20 years to a military member (or former member), who has

been serving the military (in some capacity) for at least 20 years, that the spouse is automatically

entitled to medical care under the USFSPA (especially if reserve/guard time is involved).

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SURVIVOR BENEFIT PLAN

1. Member can designate former spouse as SBP beneficiary to exclusion of current spouse.

If this designation is purely voluntary (not court-ordered or ratified and not pursuant to a

written agreement), it MAY be subject to unilateral change by the member.

2. The court can order a member to designate former spouse as SBP beneficiary. If the

designation is court-ordered, it CANNOT be changed without another court-order.

legal office for further information about divorce in general. For information about eligibility

benefits and Survivor Benefit Plan, contact the Customer Assistance Section of the Military

Personnel Flight (DPMAC) at (478) 926-6651.

FOR FURTHER INFORMATION ON THE UNIFORMED SERVICES FORMER SPOUSE'S

AIR FORCE/NAVY/MARINE CORPS ARMY

www.dfas.mil www.dfas.mil

COAST GUARD/NOAA DEFENSE LOGISTICS AGENCY

United States Coast Guard Director, DFAS – Columbus Center

Commanding Officer (L) Attn: AEP

Pay and Personnel Center P.O. Box 182317

444 Quincy Street Columbus, OH 43218-2317

Topeka, KS 66683-3591 (614) 338-7232

PUBLIC HEALTH SERVICE

Washington, D.C. 20201

(202) 475-1053

www.hhs.gov