Even if a domestic violence case is initiated by civilian authorities and disposed of in a civilian state court, the servicemember still can suffer potentially severe military consequences depending on the outcome and the direction of the proceedings.
For example, suppose Marine Corporal Gray is retirement eligible when a domestic violence incident occurs. His wife will receive transitional compensation, but what about CPL Gray's retirement? If he loses his retirement benefits, can his wife collect any of those lost benefits?
A specific provision in the Uniformed Services Former Spouse Protection Act (USFSPA) allows a spouse who is the victim of domestic abuse to receive her share of retired pay and eligibility for other benefits even though the servicemember does not retire.
In order to qualify for these benefits, the following requirements must be met.
- the spouse must have a court order awarding her a part of the service member's disposable retired pay as property;
- the servicemember must have sufficient years of credible service for retirement;
- the servicemember must have lost the right to retire due to misconduct involving domestic violence regarding a dependent family member; and
- the applicant for pension division must be the victim of the abuse or the parent of a child who was the victim.
The benefits available include a share of the service member's nonexistent retired pay, as certified by the Secretary of the service member's branch of service, and determined according to the amount that the servicemember would have obtained if he had retired upon the date of retirement eligibility.
The spouse is also eligible for commissary and exchange benefits, medical and dental care and legal assistance through the office of the staff or command judge advocate.
While these latter benefits terminate upon remarriage by the spouse, they are reinstated if that marriage ends in divorce, annulment, or death of the subsequent spouse.
For the civilian practitioner, understanding the military system can be a daunting and confusing task. It is always advisable to consult with an attorney experienced in military family law.