Military divorce involves the same legal processes as a civilian divorce. The legal action ends in a divorce decree. This is the case whether the military member is on active duty or has long completed military service.
Unique issues can arise because military divorce proceedings involve the Department of Defense. These special issues can include the following:
These are important questions for service members and spouses considering a divorce. This section provides answers to these questions and more.
Where to Divorce?
Filing for divorce requires a civil suit. As with civilians, this occurs in state court when the petitioner, the party filing for divorce, initiates the civil action. The petitioner must file the divorce papers. Before a court can issue a court order for a divorce to military members or non-military spouses, it must have jurisdiction. Jurisdiction means the court's authority to hear the case.
State law requires state residency to file for a divorce. For civilians, jurisdiction is generally determined by where the person lives. A residency analysis may not be straightforward for military families, though. Complications can arise. The jurisdiction of military personnel is their state of legal residence, regardless of station.
How to Determine Legal Residency
Determining residency is one of the first things you should consider when proceeding with a divorce. Analyzing the following factors helps determine legal residency. These factors include the following:
- Where you vote
- Where you pay state and local taxes
- What state issued your driver's license
- Where you own property
- Where you or your children qualify for in-state tuition
These are common factors for determining residency. It's common for military families to have questions about residency. Many options can exist, too. Many states relax residency requirements for military personnel.
Further, servicemembers on active duty have some protections against court proceedings. The Servicemembers Civil Relief Act (SCRA) protects servicemembers from default judgment.
State Law Differences
Deciding where to file can have substantive consequences. All states have no-fault divorce, but some states keep the option for a party to allege one party's fault. This can impact:
- Property distribution
- Child custody arrangements
- Other aspects of the divorce as the divorce process unfolds
All states have their own set of divorce laws. Some can be more favorable than others, depending on the circumstances. A service member might benefit from filing divorce proceedings in one state, but the other spouse might benefit from filing in another state. This is something to speak with a divorce lawyer about.
Dividing Assets: Pay, Pensions, and Benefits
Among the most common divorce questions is how courts divide a married couple's property during divorce. Military spouses should be aware that the military's pay, pension, and benefits system are unique.
Divorce courts know how to divide a marital estate, but the details can prove more complicated with military involvement. Military personnel should understand that state courts handling their divorce are fully able to do the following:
- Order spousal support
- Child support
- Divide pensions and pay
- Make other decisions affecting their benefits and compensation
Courts divide military pensions, like civilian retirement benefits, during a divorce. The Uniformed Services Former Spouses' Protection Act (USFSPA) allows state courts to classify military retirement pay as separate or marital property.
State laws determine the amount of the retired pay in property division. Payments of the former spouse's share of military retirement are made by the Defense Finance and Accounting Service (DFAS).
Federal law allows military pensions to be sole property or community property. Which applies will depend on the law of the state handling the divorce. Treatment can vary widely and can significantly affect the final property distribution.
Other considerations in military divorce should receive attention. The Survivor's Benefit Plan (SBP) is a military annuity program that can get overlooked. Other military benefit programs can be obscure to those without experience dealing with them.
Legal Help in a Military Divorce
Help from a military divorce lawyer experienced in handling military personnel cases is critical. This type of family law attorney will be well-versed in handling topics relevant to military families. The issues that may affect a military divorce include the following:
- Basic allowance
- Military retirement pay
- Retirement benefits
- Property division for members of the military
- Eligibility for garnishment or direct payments
- Eligibility for Tricare or other health care benefits
FindLaw provides additional information about divorce in the military. Military divorce laws in the United States are governed by federal and state statutes, with information on special rules of jurisdiction, service of process, and much more.
Getting Legal Help for Divorce in the Military
If you have specific questions, seeking legal advice is always a good idea. Military personnel and spouses can speak to on-base legal assistance attorneys. Depending on the base, this may be at the legal assistance office. They can provide military servicemembers with military legal assistance.
If you want to start divorce proceedings or are a respondent in a divorce case, an experienced military divorce lawyer near you can help. They can explain your options and how to protect your rights.