Military Divorce Explained
The military divorce is different from a normal divorce because it is governed by both the laws of the state that you live in and by the laws of the federal government. Because a military divorce involves different laws and raises complex issues regarding pensions and other benefits, it is best to consult with a military divorce attorney instead of a regular divorce attorney. Generally, state law will govern such issues as alimony, child custody, and visitation. Examine the laws of your particular state regarding those issues. However, federal law will govern issues regarding child support, property division, and military benefits.
Under the Servicemembers Civil Relief Act, otherwise known as the SCRA, military personnel are protected from all lawsuits because they need to devote all of their time and energy to defending our country. The court will normally delay the military divorce case until 60 days after active duty ends.
Beginning the Divorce
To begin any military divorce, the other spouse must be served with the Complaint. Serving a Complaint on someone in the military is not the same as serving a civilian. If the spouse is on active duty or deployed overseas, you may request that the military serve your spouse. In order for the military to serve the spouse, the spouse must consent to service. If the spouse refuses to consent to having the military serve the divorce Complaint, then you must return to court and ask that the court appoint an officer of the court to serve the papers.
The military member or the non-military spouse has a choice of where to file for a military divorce:
- The state where the spouse lives
- The state where the military member is stationed
- The state where the military member plans to live once discharged
Even though the spouse filing for a military divorce can chose any of these three states to file for divorce, it is important to consider each state's unique divorce laws before filing. The laws of that particular state will determine important issues like dividing the property and awarding alimony.
Dividing the Property
While each state may have different laws regarding how a normal divorce case may be handled, the federal law known as the Uniformed Services Former Spouses' Protection Act, "USFSPA", controls the division of military pension benefits. This military divorce law allows for direct payment of a portion of a military retiree's pay to the former spouse. The "USFSPA" law allows state courts to divide retirement benefits either as separate property of the military member or as marital property belonging to both spouses equally.
Dividing Military Benefits
Under "USFSPA", former spouses are eligible for full medical, commissary, and exchange privileges where all of the following conditions are met:
- The spouses were married for at least 20 years
- The military member performed at least 20 years of service creditable for retired pay
- There was at least a 20 year overlap of the marriage and the military service
If the spouse remarries, eligibility for benefits ends. But the benefits are re-instated if the second marriage ends by death or divorce.
All military members have a duty to provide support for their children, so military wages may be garnished to provide child support or even spousal support. However, child support cannot exceed 60% of a military member's pay.
A military divorce is not the same as a regular divorce. When consulting with an attorney, be sure to ask what experience they have with military divorces. You may also learn more from The American Retirees Association (ARA). This group serves divorced military members. The ARA also publishes Divorce and the Military II which offers a great deal of information related to military divorces.