Military Divorce
A military divorce occurs when one or more people in the marriage are active military members or veterans. This includes serving in the U.S. Army, Navy, Air Force, Marines, or Coast Guard. If one or both spouses are members of the military, splitting up can be even more complicated. In a military divorce, child support, property division, and military benefits can be different than in a standard divorce.
Both military and civilian divorce laws are state-specific. How the court will handle child custody, property, and alimony will all depend on the state where you file for divorce. To protect your rights in divorce proceedings, talk to a military divorce lawyer for legal advice about your situation.
Divorcing a Military Spouse
A divorce involving someone in the military is different from a divorce involving two civilians. There are protections for active military members under the Servicemembers Civil Relief Act (SCRA). The SCRA allows active-duty servicemen and servicewomen to request a stay of proceedings for court hearings or judgments. If you are deployed to a foreign war, the stay of proceedings may last for the length of your deployment and an additional 60 days.
Child Support and Custody in Military Divorces
The amount of child support in a military divorce is similar to that of civilian divorces. This depends on state law. Child custody will follow similar lines, although things like active-duty deployments will likely affect where children live. Talk to your family law attorney about child custody and child support in your state.
Alimony in Military Divorces
Alimony or spousal support can be part of a military divorce. Generally, VA benefits and any disability pay may be exempt from spousal support payments. However, military pension payments may be divided in a divorce between a military member and their non-military spouse.
How the USFSPA Affects Military Divorces
There are rules about the division of retirement pay and benefits under the Uniformed Services Former Spouses’ Protection Act (USFSPA). The USFSPA enables state governments to work with the U.S. Department of Defense (DOD) to provide direct payments from your pension to an ex-spouse. This law also affects the division of assets during the divorce process.
According to the “10-10 rule,” when marriage to an active-duty military member lasts for 10 years, military retirement payments can come from the Defense Finance and Accounting Service (DFAS) rather than the spouse.
Before the USFSPA, divorced military spouses were not entitled to a share of their former spouse’s retirement benefits. The USFSPA provides a legal framework to give divorced military spouses the same rights as their civilian counterparts.
In general, income diverted from a retired military service member to a former spouse is not taxable for the retiree. However, the income paid out to the former spouse is taxable income.
Division of Military Benefits in a Divorce
The USFSPA allows the direct distribution of funds from DOD retirement pay if a court order requires spousal support or alimony payments in a divorce. State laws and state courts can dictate the terms of requiring spousal support. However, certain parts of your military retirement or pension plan are typically protected from spousal support.
Non-military spouses may lose military health care (known as TRICARE) access in a divorce. However, the “20-20-20 rule” or “20-20-15 rule” allows divorced spouses to remain covered under TRICARE. The numbers reflect the years of marriage, years of military service, and the length of overlap of the previous two terms. Divorced spouses who get benefits will lose them if they remarry or if they get coverage from an employer or other insurer.
Most children of military members will retain their TRICARE coverage after a divorce. Eligibility continues until the child turns 21 years old (23 if enrolled in college), marries, or becomes an active-duty military member.
Divorce Process for a Military Spouse
The military divorce process is very similar to a civilian divorce case. One spouse must file the divorce papers. Military personnel have certain protections regarding a stay of proceedings in some situations. There are also residency requirements that may be different for military members.
State courts must abide by federal law protecting active duty service members during a contested divorce. This will likely require a hearing and a ruling from a judge. You can then finalize the divorce decree. Talk to a military divorce attorney about your legal options if you are thinking about getting divorced. A military divorce lawyer can offer crucial protection to ensure you receive fair treatment and get access to the military benefits you are entitled to.
Additional Military Divorce Articles
- Are There Limits On Forum Shopping By The Spouse?
- Does The Fspa State Who Is Responsible For The Payment Of Income Tax On The Share The Former Spouse Receives?
- Why Is the Divorce Rate for Military So High?
- Military Divorce FAQ
- The Uniformed Services Former Spouses’ Protection Act
- Understanding Military Divorce: What You Need To Know