Most people might assume that being a US service man or woman shouldn’t matter when getting a divorce, but while the legal consequence is the same, there are special rules and requirements that apply to military divorce. If you are a member of the military or a spouse to a US service person and you are considering divorce action, consider the following overview on military divorce laws.
Military Divorce Laws
There are both state and federal laws that stipulate the rules for military divorces. Federal laws focus more on which court will carry the proceedings and how military pensions are divided, while state laws oversee how alimony and spousal support will be distributed.
For example, the Servicemembers Civil Relief Act (SCRA), protects servicemen and women from being issued divorce proceedings while on active duty or for 60 days following active duty. This allows military service members to devote their time and energy on their duty without being concerned by legal matters.
In order for a court to grant a divorce to a military member or spouse, it must have the legal jurisdiction or authority to hear the case. For civilians, this is generally the place where the person lives, but for military members, this will be where the person holds a legal residence, even if they are stationed somewhere else. However, most states will allow a military member or their spouse to file divorce proceedings in the state where they are stationed. So depending on state law, there are generally three choices when it comes to which state to file for divorce in:
- The state where the spouse filing resides
- The state where the military member is stationed
- The state where the military member claims legal residency
Wherever the divorce is filed will determine the laws used by that state to settle the divorce. The residency requirements that would normally apply to civilians when filing a divorce will either be reduced or eliminated in order that military members or their spouses can file. Therefore, it is advisable that you speak with your legal representative before filing any action to determine which state laws are suitable for your interests.
Pensions and Benefits
Just as civilian retirement benefits are divided during a divorce, so are military pensions subject to division in the event of divorce. The Uniformed Services Former Spouses’ Protection Act (USFSPA), sets out how state courts should treat military retirement pay but it does not provide a specific formula for dividing the pay, therefore the amount is generally determined under relevant state laws.
Many people will be familiar with the ‘ten-year rule’ which means that the former spouse’s share of the retirement pay will be paid out if there was at least 10 years of marriage that overlapped with 10 years of military service. However, regardless of the length of marriage, a court can still authorize payments to a military spouse where the ten-year rule does not apply, but payment would come directly from the retiring spouse rather than the DFAS.
In addition to the above pension benefits, ex-spouses are also eligible for full medical, commissary and exchange privileges if:
- 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 20-year overlap of marriage and military service
The military also has special rules concerning alimony and child support to ensure a service member’s family is supported beyond the divorce. As with civilian child support, a court may enforce spousal and child support obligations using a court-order, garnishment and voluntary/involuntary allotment. Your legal counsel will be able to assist you with more details on the military rules concerning child support and alimony.
Seek the Advice of a Experienced Military Divorce Attorney
If you are a military service member or a spouse to a service member and you require more information on military divorce please contact an experienced Family Law Attorney at The Law Firm for Family Law run by Gary E. Williams.
We invite you to call us today at (727) 531-8737 to discuss how we can help you.