Five Things You Should Know about a Military Divorce

1. Georgia may not be the best state in which you could pursue your divorce. Depending on the status of your residency, you may have the option of obtaining a divorce in a different state. If so, you should learn what your different options are. Here is one small example: different states have different laws regarding child support. In Georgia, a parent cannot be required to pay child support or college expenses after a child has turned 18 and graduated from high school. (Although parents may enter an agreement to extend child support. If parents make such an agreement and incorporate that agreement into a Final Judgment and Decree Of Divorce, the requirement will be enforceable.) Other states often have different laws, which provide for child support or college expenses even after a child has turned 18. You may want to investigate your potential choices.

2. In Georgia, military retired pay is considered property, and it is subject to division in a divorce action. An award of retired pay to a former spouse is usually permanent, even if the former spouse remarries. By contrast, an award of alimony is often modifiable, meaning the court may decide to change the alimony award, either up or down, if the parties’ financial circumstances change substantially. Alimony usually terminates if the former spouse remarries, or the court may terminate alimony if the former spouse takes a live-in lover. If you are negotiating a divorce agreement, you need to be able to sort out all your legal options, taking into account your own unique circumstances.

3. You don’t have to be married for ten years in order for your spouse to make a claim for military retired pay. Again, different states have different laws regarding division of military retired pay. In Georgia, military retired pay accrued during the course of marriage is considered marital property, subject to equitable division in a divorce. “Equitable division” does not necessarily mean that retired pay should be divided equally; it means that the share of retired pay that was earned during the marriage must be divided in a way that the fact-finder decides is fair, considering all the circumstances. This is one of the many areas where an experienced divorce lawyer can help you decide what is fair and what is worth fighting for.

4. By the way, do you know what a “fact-finder” is? In Georgia, the “fact-finder” is either the judge or the jury. Georgia is one of only two states that allow a jury trial in a divorce case. Even in Georgia, the vast majority of divorces that go all the way to a trial are heard by a judge, alone. However, either side in a divorce action can request a jury trial. Where a jury is requested, the jury may decide many questions regarding property division, child support, and alimony, but the judge alone makes decisions about child custody and visitation.

5. Do you know what the 20/20 rule is? A former spouse is typically entitled to retain many military benefits, including health care, if the parties were married for at least 20 years while the service member was in the military. If the former spouse can’t meet the requirements of the 20/20 rule, health care benefits are generally available temporarily, for 18 to 36 months, under the military’s Continued Health Care Benefit Program (“CHCBP”). CHCBP must be purchased within 60 days of the time Tricare eligibility ends, but coverage actually begins when Tricare ends. As you are planning your life after divorce, don’t forget to think about you’re going to pay for health care.

Of course, this list does not come close to giving you all the information you need when you are negotiating the process of your divorce. Call and make an appointment for a consultation with Maxine Wallace. After your consultation, if you decide to retain Ms. Wallace, she will apply the consultation fee to the total cost of your divorce.

Mediation Works, Even When It Doesnt

In Columbus and the surrounding Georgia counties, our judges have entered a Standing Order which requires that all divorce actions go to mediation before they can move on to a final trial. Some judges will waive this requirement under certain conditions; other judges are pretty adamant about sticking to the rule and requiring mediation.

On its face, a divorce mediation is a simple process:
1. The wife and husband, along with their lawyers, meet in a room with the mediator.The wife and her lawyer sit on one side of a table, the husband and his lawyer sit on the other side, the mediator sits somewhere between them.The mediator explains the rules of mediation.The lawyers tell the mediator basically what the issues to be decided are.The wife and husband don’t have to say anything at this point, if they don’t want to and no one talks about who is at fault in the divorce.The only purpose of this initial meeting is to inform the mediator what decisions must be made.
2. The wife and husband go into separate rooms with their lawyers.
3. The mediator meets first with one side, usually the plaintiff’s side, in a meeting called a “caucus.”The mediator helps them formulate their first proposal for settlement of the case.Then the mediator takes that proposal to the defendant’s side and helps them formulate a response and a counterproposal for settlement.The mediator continues to move back and forth between the wife and husband, trying to find a middle ground for settlement.

One of the most basic benefits of mediation is that everyone who is involved in making decisions about the divorce are all gathered together in the same space, at the same time.
To fully appreciate the importance of this arrangement, you have to consider how cases are generally settled without mediation:
(1) Lawyer A meets with her client and they come up with a proposal,
(2) Lawyer A writes a letter to Lawyer B about the proposal,
(3) Lawyer B makes an appointment for his client to come in so that they can talk about the case and come up with a counterproposal,
(4) Lawyer B writes a responsive letter to Lawyer A,
(5) Lawyer A and her client meet, but, by this time, days or weeks have passed and—particularly in a divorce case—the situation has shifted, the parties have argued, and both Lawyer A and her client are offended by some part of the counterproposal that they don’t really understand,
(6) Everyone is back at square one, or, even worse, they are further apart than ever.

In contrast, a trained, experienced, and creative mediator can keep all of the parties talking, prevent misunderstandings, and offer suggestions to all parties about solutions and compromises. The attorneys are there to look out for their clients’ best interests and to get the best deal they can for their own clients; the mediator is there to help the parties communicate effectively and efficiently.

The very fact that everyone is in the same vicinity at the same time, with an open line of communication between them (albeit filtered by the presence of the mediator), significantly increases the chance that the parties will be able to settle their case without the trauma and expense of a full-blown trial.

Most cases that go to mediation are settled during the mediation process. But the parties to a divorce cannot be forced to settle if they don’t want to, and, obviously, not all cases settle.
I don’t like to waste time and I know my clients don’t want to waste their money on a useless exercise, so I strive to ensure that my clients get the maximum benefit from the mediation process, even if a settlement is not reached.
In my practice, I treat the mediation process as an opportunity for trial preparation while the mediator tries to settle the case. A mediator is considered “neutral” in the sense that she is not an advocate for either party, but a really good divorce mediator will share her opinions and her own experiences with both parties. It is something similar to having an outside consultant evaluate the case and provide a critique of the case’s strengths and weakness. While the mediator is in the room with me, my client and I listen carefully and discuss the mediator’s ideas and opinions with her; when the mediator goes to the other room to talk to the other party, my client and I get busy making our plans to capitalize on our strengths and shore up our weaknesses. I like to make the mediator work hard for the settlement. I want to know that, if the case settles, I have gotten the best deal for my client that can be made; if the case doesn’t settle, I want to know that I have wrung out of the mediation every bit of help the mediator has to offer.

Litigation is Good for the Soul

To be perfectly frank, I do not believe people should waste their time and money litigating matters of principle.  I encourage my clients to be practical.  I believe in identifying problems and finding solutions.  But yesterday afternoon, I recognized one very big exception to my general philosophy:  you can’t back down from a bully.

Yesterday afternoon, my client–who has a history of avoiding conflict with her domineering ex-spouse–very patiently sat through hours of mediation, while her former spouse kept throwing in ridiculous demands for us to field.  I knew my client wanted a resolution to her ex-spouse’s demand for a downward modification of child support; but I knew, too, that she was heartily sick of feeling that she was being controlled and taken advantage of by the ex-spouse that she had fought to be free of.

After hours of work, we were very close to a settlement.  We had handwritten an agreement and sent it over to the ex-spouse for his signature.  But, instead of a signed agreement, the mediator sheepishly came back into our room with yet another demand:  the ex-husband wanted my client to return to him an item of personal property she had been awarded in the divorce.  My client looked at me and, after a long pause, asked me what I would do in her place.  I had to think about it very hard for a minute.  I didn’t want her to invest more time and money in litigating details that, in the long-run, would be relatively insignificant; but, I knew too, that she needed to send a signal.  She needed her ex-husband to know that his reign over her was finished.  We took the entire settlement off the table and walked out.  We will be seeing them in court.