DIVORCE, CUSTODY & FAMILY LAW

Summary

Dividing Military Retirement. Our firm handles a large number of military divorce cases because of our proximity to Fort Jackson and Shaw Air Force Base. The most common question we receive is how military retirement is divided.

A military retirement is treated like any other retirement account. The portion accrued during the marriage is marital property, and the Family Court can award a fair share of the marital portion to the non-military spouse. The frequently misunderstood "10/10 rule" is not a South Carolina Family Court requirement — it is a rule set by the Defense Finance and Accounting Service (DFAS). If there are at least 10 years of military service during the marriage, DFAS will pay the spouse's share directly. If there are fewer than 10 years, the spouse is still entitled to their share; the court simply orders the service member to pay it each month.

For example, if you were married for 8 years of a 20-year military career, you were married during 40 percent of the service. The spouse's share is half of that marital portion — 20 percent of the total retirement. On a $2,500 per month retirement, that would be $500 per month for as long as the service member lives.

Guard retirements work differently — they are based on points rather than service years. The spouse is entitled to half the points accrued during the marriage. The attorney must know how to obtain these records and calculate the correct fractional share.

Military Disability. Military disability is not divisible. A court cannot award a portion of a disability check to an ex-spouse. However, disability income will be considered as income for purposes of alimony and child support. There is a narrow exception: if a service member waives retirement pay to receive disability pay, the waived retirement amount could potentially be divisible — but this is a rare and highly specialized situation.

Custody and Deployment. Military parents frequently face unique custody challenges due to PCS orders and overseas deployments. A deployed parent obviously cannot exercise standard every-other-weekend visitation. Under these circumstances, attorneys can restructure visitation to provide longer blocks of time — six consecutive weeks in the summer, every spring break instead of alternating, and specific requirements for video calls and phone contact to maintain the parent-child relationship.

A well-drafted order will also include automatic provisions that adjust the schedule when the service member returns stateside — for example, reverting to standard visitation when the parent lives within 30 or 40 miles of the children, without requiring a new court filing. The order should also require the primary parent to cooperate with passport paperwork and international travel arrangements so the children can visit a parent deployed abroad.

Jurisdiction and Filing. Service members who are rotating through South Carolina can file for divorce here. As long as both spouses have been in the state for three months — or one has been here for one year — the court has jurisdiction. There is a specific statutory provision addressing military families.

BAH and Income Fluctuations. Guard and Reserve members may be called to active duty, temporarily increasing their income. Financial obligations should not be set based on the assumption that the higher income will continue permanently. If the service member returns to inactive status and their income drops, obligations calculated on the active-duty income can create significant financial hardship.