Comprehensive Considerations for Drafting a Military Marital Settlement Agreement

Comprehensive Considerations for Drafting a Military Marital Settlement Agreement

Drafting a Marital Settlement Agreement (MSA) in the context of a military divorce presents unique challenges. It is crucial to ensure that the agreement covers a wide range of topics specific to military life and addresses financial and family considerations. Below are 32 essential elements that should be included in an MSA to ensure clarity, fairness, and enforceability.

1. Grounds for Divorce

Clearly state the grounds for divorce, whether based on fault or no-fault, and the applicable jurisdiction. This is particularly important in military divorces, where different states may have varying laws.

2. Effect of Reunification

Include provisions for how the MSA will be affected if the spouses reconcile before the divorce is finalized, such as whether it suspends or voids certain clauses.

3. Jurisdiction for Filing

Establish the jurisdiction in which the divorce will be filed, which could be based on legal residence or the service member’s current duty station.

4. Child Custody and Visitation

Outline detailed custody arrangements, including physical and legal custody, and account for military-specific situations such as deployments or Permanent Change of Station (PCS) relocations. Specify visitation schedules, including virtual communication during deployments.

5. Child Support

Clearly define child support obligations, taking into account military pay structures such as Basic Allowance for Housing (BAH), Family Separation Allowance (FSA), and any special duty pay. Include provisions for modifications if income changes due to promotions or deployments.

6. Alimony/Spousal Support

Define the spousal support terms, considering fluctuations in military income and automatic adjustments for changes in cost of living. Include how support will be affected by promotions or military benefits changes.

7. Use of the Marital Home

Specify whether one spouse will retain exclusive use of the marital home, and who will cover mortgage, utilities, and maintenance during and after the divorce process.

8. Use of Family Vehicles

Clarify which spouse will retain the use of family vehicles and who will bear responsibility for vehicle-related expenses such as insurance, registration, and repairs.

9. Division of the Marital Home

Determine if the marital home will be sold or if one spouse will buy out the other’s share. Address how the sale price will be set, how any repairs will be handled, and how the proceeds or equity will be divided.

10. Division of Personal Property

Clarify how personal property such as furniture, jewelry, and household goods will be valued, divided, and collected. Specify any mechanisms for resolving disputes over distribution and valuation.

11. Division of Tax-Exempt Retirement Assets (TSP, 401k, etc.)

Outline the division of retirement accounts, including the Thrift Savings Plan (TSP) and any 401(k) or IRA accounts. Ensure the proper legal mechanisms, such as a Qualified Domestic Relations Order (QDRO), are in place.

12. Division of Pension Benefits

Address the division of military pensions under the Uniformed Services Former Spouses’ Protection Act (USFSPA) and specify how the marital portion will be calculated.

13. Survivor Benefit Plan (SBP)

Clearly define whether the non-military spouse will be designated as the beneficiary of the Survivor Benefit Plan (SBP) and ensure the proper election process is followed.

14. Life Insurance

Ensure the service member maintains adequate life insurance, such as Servicemembers' Group Life Insurance (SGLI), to cover obligations like spousal or child support in the event of death.

15. Choice of Law

Given the frequent relocations of military families, clarify which state's laws will govern the agreement, ensuring consistent enforcement across jurisdictions.

16. Attorney’s Fees

Determine whether either party will be responsible for the other’s attorney fees, and specify how the costs of mediation or arbitration will be covered if disputes arise.

17. Mediation

Include a clause that requires mediation as a first step before pursuing any further legal action, promoting cooperation and reducing future litigation.

18. Full Financial Disclosure

Ensure both parties provide complete financial disclosure, including all assets, debts, and military entitlements, to prevent future disputes about undisclosed assets.

19. Liability for Past Unpaid Taxes

Address who will be responsible for any unpaid taxes from previous years, specifying how liabilities will be divided.

20. Allocation of Child Tax Credit

Determine which parent will claim the child tax credit and other dependent-related tax benefits. Absent an agreement, IRS rules typically award this to the parent with primary custody.

21. Control Over 529 Accounts

Clarify who will control any 529 college savings plans, specifying contributions, withdrawals, and how funds will be used for the children's education.

22. Terms Related to Military Relocations

Include provisions that account for how PCS moves or deployments will impact custody, visitation, and support arrangements.

23. Terms Related to Changes in Military Income

Military income can vary due to promotions, special pay, or deployments. The MSA should include mechanisms for automatic adjustments to support payments if the service member’s income changes.

24. Contact Between Children and Parents

Establish communication guidelines to ensure regular contact between the children and the non-custodial parent during deployments, including phone calls, video chats, and emails.

25. Holiday Visitation Schedule

Create a specific holiday visitation schedule, detailing how holidays, school breaks, and special occasions will be shared between the parents.

26. Health Care (Tricare)

Address continued access to Tricare for the non-military spouse under the 20/20/20 rule or 20/20/15 rule. Specify how uncovered medical costs will be divided between the parties.

27. Military Commissary and Exchange Benefits

Clarify whether the non-military spouse will retain access to military commissaries and exchanges, particularly if the 20/20/20 rule applies.

28. Education and Extracurricular Expenses

Include provisions that address how education and extracurricular activities will be funded, including private school tuition, sports, and hobbies.

29. Incorporation Clause

Include an incorporation clause stating that the MSA will be incorporated into the final divorce decree, ensuring that its terms are enforceable by the court if one party fails to comply.

30. Integration Clause

The MSA should also include an integration clause that confirms the agreement is the final and complete understanding between the parties, preventing either party from claiming there were additional oral agreements or promises.

By addressing these 30 essential elements, you can ensure that your Marital Settlement Agreement fully covers the complexities of military life and provides a clear and enforceable path for both parties. Each provision helps safeguard your financial future and ensures that both the service member and non-military spouse are protected.

At Patriots Law Group, we understand the unique challenges of military divorce and are here to guide you through the process. To schedule a consultation, call us at 301-952-9000 or use our online scheduling link (CLICK HERE).

Disclaimer: This blog is for informational purposes only and does not constitute legal advice. Reading this blog does not create an attorney-client relationship. For specific legal advice, please contact Patriots Law Group directly.