Understanding Military Divorce: What You Need To Know

Members of the military face additional challenges when going through a divorce. Service members may be out of the country or on active duty when their spouse serves them with divorce papers. Service members also have additional rights and benefits that civilians do not possess.

Understand the challenges of military divorce to protect your property and your family. For legal advice about a divorce for military families, talk to a local divorce attorney.

Divorce for Military Families

Divorce is a legal separation between spouses. Any family going through a divorce has to deal with tough decisions. However, there are special circumstances for people in the armed services. Active duty service members may be out of the country or have to relocate on short notice. This can make the military divorce process more complex than a civilian divorce.

The divorcing couple has to decide how to handle marital property division and child custody in a divorce. If the couple cannot agree on a divorce decree, the court will decide. Divorce laws go through state court, even if the spouses are living in separate states. State law determines how to divide assets, who gets custody, and the amount of child support.

Where To File for Military Divorce

States handle family law matters like divorce. The filing requirements depend on state laws. States generally have residency requirements and waiting periods to file for divorce. Generally, you or your spouse can file for divorce in the state where either of you reside. Residency requirements range from as little as six weeks to as long as a year.

Service members may have some flexibility in choosing where to file for divorce, but they must comply with state laws regarding residency or domicile. Typically, a service member can file for divorce in the state where they are stationed if they meet the state’s residency requirements, where they claim legal residency, or where the nonmilitary spouse resides, provided that state laws allow it.

Division of Military Pensions and Benefits

Military service comes with health care and military retirement benefits. After a divorce, the nonmilitary spouse may lose some of the benefits. However, federal law provides some benefits for former spouses. Types of pension and military benefits include:

• Commissary and exchange benefits
• Military retirement pay
• Survivor Benefits Plan
• TRICARE medical coverage
• Defense Finance and Accounting Service (DFAS) pension

Uniformed Services Former Spouses’ Protection Act

The Uniformed Services Former Spouses’ Protection Act (USFSPA) provides certain benefits for the military member’s former spouse. As long as they do not get remarried, the former spouse can get benefits if they meet the 20/20/20 rule. Eligibility under the 20/20/20 rule requires:

• The marriage lasted at least 20 years
• Military members had at least 20 years of retirement-creditable service
• Former spouse was married during at least 20 years of the military member’s service

If the couple was married during at least 15 years of the military member’s service but less than 20, the former spouse is entitled to only one year of transitional TRICARE medical coverage.

Survivor Benefit Plan

The Survivor Benefit Plan (SBP) provides an annuity for dependents after the service member dies. However, the spouse is no longer a beneficiary after divorce. The service member can elect a former spouse to receive benefits, or the former spouse can request coverage.

Retirement Pay for the Former Spouse

A former spouse can receive a portion of the service member’s retirement pay as part of a divorce settlement. However, for direct payments through the Defense Finance and Accounting Service (DFAS), the marriage must have lasted at least 10 years overlapping with 10 years of creditable military service. Talk to your divorce attorney about negotiating the division of retirement pay in a divorce.

Understanding the Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act (SCRA) gives military service members certain legal protections. For a divorce case, the SCRA can give service members more time to deal with legal proceedings and protect their assets from default judgments.

Family court proceedings are stayed or put on hold for qualifying military members. Service members in military service have a 90-day stay on divorce proceedings and can apply for additional time. If your spouse serves you with divorce papers while stationed overseas or on active duty, you have additional time to respond.

The SCRA provides protections against default judgments and allows for stays in civil proceedings, which can indirectly affect child support and alimony cases by giving service members more time to respond. However, it does not directly modify or enforce child support or alimony obligations.

How Deployment Impacts Divorce Proceedings

Military deployment can complicate court proceedings. After filing for divorce, the service member can have more time to respond to court filings. However, a temporary stay does not stop the divorce altogether. The court can extend the stay on the divorce process based on the service member’s eligibility. However, being overseas may not be enough to delay divorce further.

Family courts understand the challenges of going through a divorce while overseas. The courts can use video conferencing for court appearances and hearings. Your divorce attorney will attend any family court hearings in person.

Child Custody and Military Service

Divorcing parents with children have to determine child custody arrangements. This includes legal custody, physical custody, and visitation. If you and your former spouse cannot decide how to share custody, the court will establish a child custody agreement. The court makes child custody decisions based on the best interests of the child. The court considers many factors for child custody, including:

• The child’s relationship with each parent
• Siblings and other family members
• The child’s community
• Each parent’s individual circumstances
• The child’s preferences

A spouse may try to use their former military spouse’s service against them in child custody cases. However, military service alone does not determine child custody. Past deployments, overseas posts, and active duty do not automatically mean the other parent will get primary custody. However, deployment could be one of the factors the court looks at when determining custody.

Legal Resources for Divorce Decree Modifications

Contact a military divorce lawyer to guide you through a divorce. An experienced attorney can explain your options and give you legal advice about what you need to know. Your attorney can help negotiate a child custody agreement to make sure you get time with your child and can stay active in their lives. Contact a local divorce attorney who understands military divorce.