Overview of Military Divorce Law

To get a divorce, military service members have to follow state divorce law. State divorce laws guide division of assets, child custody, and military parenting plans. However, there are federal law overlays, including preemption and special rules for service of process on a service member. Jurisdiction and filing requirements can also depend on where the service member lives or is stationed.

The Servicemembers Civil Relief Act (SCRA) has additional rules to protect service members in a divorce. Military spouses are eligible for some military healthcare benefits (TRICARE) and other programs under the Uniformed Services Former Spouses’ Protection Act (USFSPA). To find out more about how divorce law works for military families, talk to a local military divorce attorney.

How Is Military Divorce Different from Civilian Divorce?

Divorce is the legal separation of a married couple. In a divorce, the married couple has to determine debt and property division. Some divorce court orders also require one spouse to pay alimony/spousal support to the other. Married couples with children also have to decide how to raise their children after separation, including child custody, visitation, and child support.

Military service members and their families have unique situations that may require handling divorces differently than civilians. Military personnel often have to move around frequently to different military bases. Active duty military service may involve overseas deployment for months at a time.

Because of these unique challenges, filing for divorce can involve differences in:

• Legal residency requirements
• Serving divorce papers
• Extensions or stays of divorce proceedings
• Child support determinations

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Residency and Divorce Filing Requirements

Either spouse can file for divorce to start court proceedings as long as they qualify under their state’s residency requirements.

Residency requirements vary by state and can range from 60 days to one year. For military divorces, either spouse can file for divorce in the state where either spouse resides or the state where the military member claims legal residence.

The Servicemembers Civil Relief Act (SCRA) and Divorce

For most civil court proceedings, parties have a limited time to respond to court notices. If they don’t respond by the deadline, the court can enter default judgment against them. However, this would not be fair to active duty service members who may be overseas for months at a time. Federal law gives military members additional time to respond to civil actions.

The Servicemembers Civil Relief Act (SCRA) places a stay on civil actions, including the divorce process, while the service member is on active duty. Service members get a 90-day temporary stay of proceedings to respond. They can also petition for additional extensions beyond the 90-day stay.

Dividing Military Retirement Pay in a Divorce

There are differences in the military benefits that an ex-spouse can get in a divorce decree. The non-military spouse may still be eligible for TRICARE or health insurance coverage. Some former spouses can also get commissary and exchange benefits.

Divorcing spouses can divide their retirement benefits, and the ex-spouse can still be a beneficiary of a Survivor Benefit Plan (SBP). Family law courts can also divide military pension benefits.

Dividing military pension benefits in a divorce has specific qualification requirements under the Uniformed Services Former Spouses’ Protection Act (USFSPA). Under the The 10-10 rule, the couple must have been married at least ten years and the service member must have performed at least ten years on active duty to qualify.

After qualifying, the non-military spouse will get pension benefits directly from the Defense Finance and Accounting Service (DFAS). However, the amount of pension benefits is generally limited to 50 percent of the service members retirement income (or more to include child support or spousal support).

However, the divorce court can award a portion of the pension to the non-military spouse even if they were not married for ten years. For shorter marriages, the service member pays benefits directly to their ex-spouse.

Child Custody and Support in Military Divorces

The parents can negotiate a child custody and visitation agreement that works best for their family’s needs. Courts generally encourage child custody and visitation plans that provide regular contact with both parents. However, shared parenting plans are more difficult when one parent is an active-duty service member.

If the divorcing parents cannot agree on a parenting plan, the court may refer them to divorce mediation. Divorce mediation uses a third-party mediator to help the parents come up with a parenting plan. Family courts will resolve disputes based on what is in the best interests of the child.

Any child custody orders are subject to modification when there is a significant change in circumstances. If a military service member returns from active duty or retires from the military, they can petition the court to change the custody and visitation plan.

State courts determine child support based on factors like income, the number of children, and the child’s specific needs. The military service branch may have additional support requirements. In most situations, the non-custodial parent pays child support to the custodial parent.

The custodial parent can submit a wage garnishment court order to the DFAS. The DFAS can assign the child support amount to the other parent or state child support enforcement agency.

Finding an Experienced Military Divorce Attorney

Judge advocate generals (JAGs) can offer some legal services for military members. However, they won’t represent members of the armed services in divorce proceedings. Most service members have access to legal assistance offices where they can get information about filing for divorce or referrals. However, to help you through the divorce process, consider an experienced divorce lawyer.

A divorce lawyer understands how to handle divorce cases in your state and can represent you through the proceedings. A military divorce attorney also understands the unique legal issues involved in military divorces. Your attorney can also help you get the best outcome for you and your family. Contact a local military divorce lawyer for legal advice in your case.