Military divorces are no more complicated than civilian divorces. However, some special rules and requirements apply to members of the military and their spouses in the divorce process. The following is an overview of the laws that will affect U.S. servicemembers who get a divorce.
Military Divorce Laws
Both state and federal laws govern military divorce. For example, federal laws may determine where divorcing couples go to court or how to divide military benefits. However, state laws may affect orders for alimony and spousal support. The laws of the state where you file your divorce apply to the divorce proceedings.
Before a court can grant a divorce to military members or non-military spouses, it must have "jurisdiction" or the authority to hear the case. For civilians, jurisdiction is generally determined by where the person lives. The jurisdiction of military personnel is their state of legal residence, regardless of station.
Residency, Filing Requirements, and Stays of Proceedings
Many states have reduced or eliminated the residency requirement in military divorces. Servicemembers or their spouses can file for divorce in their state of assignment. This is the case even if they don't meet the legal resident status.
Military families have three choices for 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 residence
The state court determines divorce terms, including property division, child custody, and child support. As a result, the specific conditions of a divorce will change based on each state's laws.
Servicemembers on active duty have some protections against court proceedings. The Servicemembers Civil Relief Act (SCRA) protects servicemembers from default judgment. They can apply for a "stay" of any civil action initiated against them while on active duty or within 90 days of their release from active duty. A stay temporarily puts the case on hold.
This stay is in place so servicemembers may devote their time and energy to defending the nation. It allows them to do so even when facing orders or judgments against them if they cannot appear in court. Suppose a military servicemember wants a stay beyond those 90 days. In that case, they can petition the court to grant it. Still, courts have the discretion to grant or deny any additional stays and typically will not postpone proceedings the entire duration of a servicemember's military career.
Military Pensions and Benefits
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.
USFSPA does not provide a formula for dividing retired pay. However, it does limit the amount to be paid under the law to 50% of the Servicemember's disposable retirement income (or up to 65% if payments also include child support and/or alimony).
Payments of the former spouse's share of military retirement are made by the Defense Finance and Accounting Service (DFAS). The former spouse is eligible for these payments if:
- The servicemember and former spouse were married for at least ten years; and
- The servicemember performed ten years of military service (the 10/10 rule).
Regardless of the length of the marriage, a court may still allow payment to a military spouse as an offset. In this situation, payment would come from the retiring spouse rather than the DFAS.
In addition to pension benefits, spouses of former military personnel are eligible for full medical, commissary, and exchange privileges 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 between marriage and military service
Spousal and Child Support
A court may enforce spousal and child support obligations in many ways, including by:
- Court order
- Voluntary or Involuntary Allotment
The court may require the providing spouse to maintain life insurance that covers child or alimony support payments for a specified period.
Talk to an Attorney About Your Military Divorce
Active duty servicemembers can find legal advice through a local legal assistance office. This is because a military divorce requires special knowledge of laws that don't apply to civilian divorces. The legal assistance office can assist with various legal issues, including divorce.
Speaking with a family law or divorce lawyer familiar with military divorce cases is wise. An experienced military divorce lawyer can help you understand applicable laws, your rights as an armed forces member, and more.
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