While military divorces are no more complicated than civilian divorces, there are special rules and requirements that apply to U.S. service members and their spouses when they divorce. These differences can be related to matters of compliance with support payments, service of process, residency or filing requirements, or the division of military pensions. The following is an overview of the laws that will affect U.S. service men and women who get a divorce.
Military Divorce Laws
Military divorce is governed by both state and federal laws. For example, federal laws may determine where divorcing couples end up in court or how military pensions are divided, whereas state laws may affect how alimony and spousal support may be issued. The particular state laws apply to a divorce depend on the state in which the divorce is filed.
Before a court can grant a divorce to military members or spouses, it must have "jurisdiction," or the authority to hear the case. For civilians, jurisdiction is generally determined by the place where the person lives. However, for military personnel, jurisdiction may be the place where the person holds legal residence, even if the service member is stationed somewhere else.
Residency, Filing Requirements and Stays of Proceedings
Many states have reduced or eliminated the residency requirement in military divorces and will allow service members or their spouses to file for divorce in the state where they are stationed, even if they're not legal residents of that state.
Generally speaking, military members and their spouses have three choices when it comes to where they can file for divorce:
- The state where the filing spouse resides
- The state where the military member is stationed
- The state where the military member claims legal residency
The grounds required for divorce, e.g. property distribution, child custody, child support issues, are determined by the state in which the divorce is filed. As a result, the specific conditions of a divorce will change based on that particular state's laws.
It's worth noting that service members on active duty have some protections against court proceedings. Under the Servicemembers Civil Relief Act (SCRA), for example, service members are protected from default judgment and can apply for a "stay" — a temporary halt — of any civil action, including child custody proceedings, which are initiated against them while on active duty or within 90 days from their release from active duty.
This stay is in place so service members may devote their time and energy to defending the nation while also facing orders or judgments against them while they're unable to appear in court. If a servicemember wants a stay that extends beyond that 90-day period, they can petition the court to grant it, but the decision to grant or deny any additional stays will be made at the court's discretion.
Military Pensions and Benefits
Like civilian retirement benefits, military pensions are subject to division between spouses in the event of divorce. Under the Uniformed Services Former Spouses' Protection Act (USFSPA), state courts may treat military retirement pay as either sole or community property, depending on the state. While the USFSPA doesn't provide a formula for dividing the amount of retired pay, the amount is generally determined and awarded under the specific state laws.
Further, payment of the former spouse's share of military retirement is paid directly by the Defense Finance and Accounting Service (DFAS) to the former spouse if there was at least 10 years of marriage that overlapped with 10 years of military service (known as the 10/10 rule).
Regardless of the length of marriage, however, a court may still authorize payment to a military spouse who has been married for less than 10 years as an offset. In this type of situation, payment would come from the retiring spouse rather than from the DFAS.
In addition to pension benefits, spouses of former military personnel are also eligible for full medical, commissary, and exchange privileges after a military divorce when:
- The couple was married for 20 years or more
- The service member has performed at least 20 years of creditable service toward retirement pay
- There was at least a 15 year overlap of marriage and military service
Spousal and Child Support
The military has special rules concerning spousal maintenance (alimony) and child support. These rules are designed to ensure a service member's family support obligations beyond a divorce or separation.
A court may enforce spousal and child support obligations in a number of ways, including by:
- Voluntary or Involuntary Allotment
A court also may require the providing spouse to maintain life insurance that would cover child or alimony support payments for a specified period.
Talk to an Attorney About Your Military Divorce
Because a military divorce requires special knowledge of laws that don't apply to civilian divorces, it's wise to speak with a divorce lawyer who is familiar with military divorce cases. An experienced, local divorce attorney can help you understand the different laws that may apply to your situation, your rights as member of the armed forces, and more.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
Contact a qualified divorce attorney to make sure your rights are protected.