Military Divorce: The Basics

Military divorces are no more complicated than civilian divorces. However, some special rules and requirements apply to military families going through a divorce. Knowing these unique considerations will help you better navigate the divorce process.

Unique issues can arise during military divorce proceedings, including:

  • Where should you file for divorce?
  • Are there protections for divorce proceedings for active duty service members?
  • How are military pay, pensions, and benefits divided during a divorce?
  • What are the rules for alimony and child support for a military divorce?
  • What legal help is available for military families during the divorce process?

These are important questions for service members and their spouses considering a divorce. This section answers these questions and outlines the laws that affect military families during 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.

State Law Differences for Military Divorces

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:

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 military divorce lawyer about.

Jurisdiction and 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.

Residency, Filing Requirements, and Stays of Proceedings

Many states have reduced or eliminated the residency requirement in military divorces. Service members 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:

  1. The state where the filing spouse resides
  2. The state where the military member is stationed
  3. 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.

Service members on active duty have some protections against court proceedings. The Servicemembers Civil Relief Act (SCRA) protects service members 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 service members 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 service member wants a stay beyond those 90 days. In that case, they can petition the court to grant it.

Still, courts can grant or deny any additional stays and typically will not postpone proceedings the entire duration of a service member's military career.

Dividing Assets: 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. Which applies depends on the law of the state handling the divorce. Treatment can vary widely and can significantly affect the final property distribution.

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 service member's disposable retirement income (or up to 65% if payments also include child support 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 service member and former spouse were married for at least ten years; and
  • The service member 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

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.

Spousal and Child Support

The military has special rules about spousal maintenance (alimony) and child support. These rules ensure a service member's family support obligations during the separation phase and beyond divorce.

A court may enforce spousal and child support obligations in many ways, including by:

  • Court order
  • Garnishment
  • 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.

Get Legal Help With Your Military Divorce

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 more. 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 help you understand applicable laws and your rights as an armed forces member or spouse.

Active duty service members can also 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.

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Can I Solve This on My Own or Do I Need an Attorney?

  • You may not need an attorney for a simple divorce with uncontested issues
  • Legal advice is critical to protect your interests in a contested divorce
  • Divorce lawyers can help secure fair custody/visitation, support, and property division

An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.

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