Military couples face unique challenges, and while they might not have some of the circumstances that lead some couples to write a prenup, military couples sometimes face situations that a prenuptial agreement can address. Frequent moves due to recurrent deployments, for example, can impact the career and earnings of a civilian spouse. Not all states have reciprocity agreements for military spouses who work in licensed professions, meaning that military spouses sometimes find themselves navigating new state requirements just to get a job every time they relocate.
Servicemembers tend to retire at a younger age, which can impact retirement planning. State marriage laws govern how property acquired during marriage will be treated. But if you are deployed to one state, while calling another state home, it might be unclear which state’s marriage laws would apply if you were to get divorced.
While divorce might be the last thing you want on your mind when you get married, if you’re planning your military wedding, you might want to add writing your prenuptial agreement to your list of things to do. A prenuptial agreement can help you tailor your marriage agreement to meet your unique needs as a military couple. Too many couples get married, not fully understanding the legal and financial commitments they are making. By writing a prenuptial agreement with your spouse before you get married, you can bring some clarity to the process, while also planning for your future together.
Military servicemembers are more likely to get married at a younger age than civilian couples. According to a report written by the Department of Education, over half of active-duty servicemembers are married, and 43% of active duty servicemembers have children. Military servicemembers also tend to have children at a younger age than the general population. Half of active duty servicemembers are 25 years old or younger when their first child is born, which is well below the median age by which most women have their first child (the current median age is 27). While civilian couples might wait until they are financially stable (and older) to get married and have children, military life creates unique incentives that might lead to younger marriages. For example, spouses are entitled to receive military housing benefits and other allowances, while significant others don’t receive these benefits. Where some younger couples might choose to cohabitate before they get married, military couples might choose to get married sooner.
If you’re planning your wedding as a military servicemember or spouse, you might have additional things to consider, especially if you’ll be deployed in combat zones or find yourself sent on high-risk missions. For example, military spouses might think about life insurance at a younger age than the civilian population. Military couples tend to spend more time apart than civilian couples do, and this can create distance and strain on a relationship. Finances are one of the major factors that can strain a relationship, and a prenuptial agreement can allow you to address some of the issues that can lead to conflict down the line.
In this article we’ll explore some of the important benefits of having a prenuptial agreement before your military wedding. What are some of the benefits that a prenuptial agreement can provide military couples?
They include:
- Establishing Your State of Residency
- Deciding How Assets and Debts Acquired During the Marriage Will Be Owned
- Financial Planning for Frequent Moves
- Military Retirement Benefits
Establishing Your State of Residency
Military families move more frequently than civilian families. According to the Department of Defense, military families relocate every two to three years, and 33% of active-duty spouses report that they moved within the last year.
When civilian couples get divorced, they’ll file for divorce in the state where they live. But when military servicemembers and their spouses file for divorce, matters are more complicated. Military couples may consider one state “home,” but they may have gotten married in another state and may be currently living somewhere else entirely. In a situation like this, the military couple could potentially have two or even three states where they could legally file for divorce.
The jurisdiction, or location where you choose to get divorced can have a significant impact on your divorce settlement. Some states, like Kentucky and North Carolina require couples to have been separated for at least one year before their divorce can be finalized. In other states, separation can be used as grounds for divorce. Yet other states, like the state of Washington, don’t have any separation requirements for a couple’s divorce to be finalized. Different states have different methods for determining marital and separate property, which can also impact divorce settlements.
According to Military One Source, laws protecting servicemembers and their families allow military couples to get divorced in the state where they are stationed, the state that they consider home (the state of their legal residency), or the state where the military spouse resides. Both spouses don’t necessarily have to claim residency in a state for the couple to file for divorce there.
Deciding the jurisdiction where a divorce will be filed can become a point of conflict in a military divorce. For example, if a military spouse files for divorce where she lives, and not where her partner is stationed, her deployed partner may be able to delay proceedings until they return from active duty. If a couple chooses to divorce in their home state and not where they are deployed, they might find themselves facing additional travel costs to attend court dates if the divorce goes to trial. One spouse might file for divorce in one jurisdiction with the hopes that they’ll get an outcome that is more in their favor in that jurisdiction.
Each state also views the marriage contract slightly differently. For example, in a community property state like the state of Washington, any assets or debts acquired during a marriage (regardless of whose name is on the asset or debt), would be considered shared property.
In a common law property state, on the other hand, couples can usually keep property separate simply by keeping money in separate accounts and by keeping only one partner’s name on a deed, title, or line of credit. Issues can arise for a military couple if they get married in the state of Washington where all marital property is shared, but then get deployed to a common law property state where the courts will look at whose name is on the deed, bank account, or debt. In these states, issues can arise if debts were acquired in only one spouse’s name, but benefitted both parties in the marriage, or if one partner purchased a family home or car, and the property was only put in one spouse’s name.
When you create a prenuptial agreement before you get married, you can avoid some of this confusion by deciding in your prenup the place you plan to call home. Under a “choice of law” clause, a couple can choose to have the laws of a specific state govern their prenuptial agreement and therefore their divorce. “Choice of law” allows a couple to specify the state they intend to call home, and thus specify where they would file for divorce should that ever become an issue.
Deciding How Assets and Debts Acquired During the Marriage Will Be Owned
When it comes to assets and debts, a prenuptial agreement works for military couples the same way it works for civilian couples. Military couples can use their prenuptial agreement to specify which assets acquired during marriage will be considered shared assets and which assets would be considered separate. For example, under Washington marriage laws, any assets or debts acquired after you get married are considered shared assets or debts, regardless of whose name is on the debt, title, or account. This can create situations where a spouse makes a purchase (of a house, boat, or car), thinking it’s his or her separate property, but finds later in divorce that the courts see this property as shared.
A prenuptial agreement can help you and your future partner get very clear about what property will be considered shared and separate. This can be especially important if you both plan to share ownership of a family home, but only one partner’s money will be used to purchase the home. A prenuptial agreement can also offer clarity if one partner will inherit money or asserts. While inheritance is typically considered separate property, there are situations where separate property can be comingled.
Because military couples might spend more time apart, planning to keep some assets and debts separate might be a wise choice. When one partner is deployed for months, couples might find that they aren’t on the same page about spending habits and debts. Couples who live together often have a clearer picture of each other’s spending habits, while couples who experience frequent separation due to deployment might find that they live separate financial lives. If you are deployed for months and your spouse gets into significant debt while you are away, a prenuptial agreement may be able to protect you from being responsible for these debts.
Financial Planning for Frequent Moves
Frequent deployment can create unique challenges for military spouses. Active duty military servicemembers have the benefit of having job security regardless of where they have been stationed, while their spouses, if they choose to move, may struggle with job security. The Department of Defense reports that active-duty military spouses have a much higher unemployment rate than civilians do (the unemployment rate of military spouses is 24%). There are many reasons why this is the case.
Approximately 34% of military spouses work in fields where state licensure is required. While there is a push to pass interstate licensing compacts to allow for military spouses’ professional licenses to be recognized across state lines, acknowledgement of military spouses’ professional licenses is patchwork at best. Some states have no compacts in place, while other states only have compacts for a limited list of professions. Whether a state will recognize a military spouse’s license varies from state to state and from profession to profession. When there are no compacts in place, getting licensed to practice professionally in a new state can be costly and time-consuming.
According to the National Military Family Association, military spouses earn 26% less than civilians. Even when a military spouse works in a field that doesn’t require a license, it can be difficult to find work in a new city, town, or community. Every time a spouse is deployed, military spouses basically must start all over again with the networking process to find work. This leads to lower earning capacity over the course of a career.
A prenuptial agreement can help you and your partner plan financially. For example, if one spouse is deployed to a state where their partner cannot find work due to licensing constraints, will the military spouse handle all living expenses, or will the civilian spouse be expected to find whatever work he or she can while working to obtain licensure? If frequent moves affect the civilian spouse’s earning capacity or career, provisions in the prenuptial agreement can offer alimony or a more equitable division of property to help the civilian spouse get back on his or her feet should the couple get divorced.
Military spouses may also have the right to a share of their military partner’s retirement benefits in some circumstances, but if frequent moves or the military lifestyle results in lost income, and lost equity in state benefit programs for the civilian spouse due to frequent moves, the prenuptial agreement can potentially address these inequities. An example of this would be a teacher who never gets a chance to become fully vested in any state’s retirement program due to frequent moves.
Military Retirement Benefits
Under the Uniformed Services Former Spouses’ Protection Act, state courts are authorized to divide military pay as a marital asset. If a former military spouse is awarded military pay, they may be able to receive their portion of military pay directly from the military. Yet, for a spouse to qualify for direct payments, they must have been married to their active-duty military spouse during his or her creditable service for at least ten years. This doesn’t mean that a military spouse wouldn’t be entitled to their partner’s military benefits if they are married less than ten years; it just means that the spouse would not be entitled to receive these payments directly from the military if they don’t meet the time requirements.
Military servicemembers are eligible to receive retired pay after 20 years of service. Because of this relatively younger age of retirement, military spouses may face unique retirement planning challenges.
Military servicemembers might rightfully want to protect as much of their retirement pay as possible with a prenuptial agreement. Yet, it’s important that the agreement be fair for it to be enforceable. Regardless of the length of the marriage, military spouses often make major sacrifices to support their active-duty spouse, whether that is staying home to raise the children, or sacrificing career advancement due to frequent relocation. A prenuptial agreement can offer clarity about the civilian spouse’s right to receive military retirement pay and offer guidance for how payments would be divided should you ever get divorced.
Write Your Prenuptial or Postnuptial Agreement Today
Military life can bring with it challenges and joys. You and your spouse may have the benefit of seeing more parts of the country and the world. Military spousal benefits and military retirement pay can offer peace of mind for the future and for your children. But military life also brings with it specific challenges that a prenuptial agreement can help you address.
While it’s best to write your prenuptial agreement before you get married, you can also write a postnuptial agreement after you are married. This might make sense for couples who are facing deployment, a period of long separation, or a move to another state. A postnuptial agreement can help you and your spouse decide which state marriage laws you want governing your marriage, and help you formalize a financial plan for your time apart. It’s never too late to create a postnuptial agreement.
The family lawyers at Truce Law help couples master some of the most serious challenges of family life, marriage, and divorce. A prenuptial agreement can be a collaborative process—a roadmap for future marital success. Contact our prenuptial agreement lawyers in the state of Washington today to learn more about how the collaborative process can work for you.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.