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Is Divorcing A Military Member More Complicated?


Young couple embracing in airport, man in military uniform
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Question: Is Divorcing A Military Member More Complicated?

I wouldn’t say that military divorce is more complicated. It is different with it’s own unique rules regarding division of military pensions, residency requirements for filing for divorce, certain legal protections for the military member and emergency court orders pertaining to child support. Once you become familiar with the rules and federal laws that apply during a military divorce the divorce process is pretty straightforward.

Service members Civil Relief Act:

Military members have legal protection from divorce proceedings that are not established for civilians. Under the Service Members Civil Relief Act military members are protected from lawsuits including divorce proceedings so they can “devote their entire energy to the defense needs of the Nation.” A court can delay legal proceedings for the time that the service member is on active duty and for up to 60 day following active duty.

Jurisdiction of the court:

If the spouse of a military member seeks a divorce, the activity duty spouse must be served with a petition for divorce in order for a state court to have jurisdiction over the military member. If the activity duty spouse is serving overseas or deployed in time of war it may be requested that military authorities serve the activity duty member. The active duty member can refuse to accept the service and if this happens you may request the court serve the member. This can complicate the divorce process because not many courts are going to send someone a long distance to serve a military member. So, if your spouse is deployed or serving overseas you may have to wait until they return to the area to start the process.

Residency and Filing Requirements:

Many states will allow a military member or their spouse to file for divorce in the state the military member is stationed. It would not matter if neither is a legal resident of the state. Military members and their spouses have three choices when it comes to which state to file for divorce.

  • State where the spouse filing resides.
  • State where the military member is stationed.
  • State where the military member claims legal residency.

Whichever state they file in the grounds for divorce, property distribution, child custody and child support issues are governed by the laws of the state where the divorce petition is filed.

Division of property:

Division of most marital property and assets is dependent on the laws of the state in which the petition for divorce is filed. Military pension is different and is governed by the Uniformed Services Former Spousal Protection Act. The USFSPA authorizes direct payment of a portion of a military retirees pay to the former spouse and extends some base privileges to certain former spouses.

The USFSPA allows state courts to treat disposable retired pay either as property solely of the military member or as property of the member and his spouse in accordance with the laws of the state court. The USFSPA does not contain a formula for calculating the appropriate division of retired pay. Although up to 50% of a military member’s retired pay may be awarded, it is the state laws that will determine the exact division of the retired pay and most state courts have a formula for calculating division of military pay.

It is important to understand that the USFSPA does not mean that just because you are married to a military member, you will get a portion of his retirement. Splitting of military retirement pay is not mandated by the USFSPA. If you are awarded a portion of the military member’s retired pay is up to the courts and they will treat it just like property or benefits in a civilian divorce. Also, your divorce decree must read that you were given a portion of the retirement and it must be written as a percentage.

For example, if you were married to a military member for 10 years the courts may decided you are entitled to 1/3 of the military retirement. It must state in your decree that you have been awarded 33% of the spouses retired pay. Defense Finance and Accounting (DFAS) has very strict rules when it comes to the wording of a divorce decree. You would be wise to notify DFAS and familiarize yourself with those rules and regulations.

Former Spouse’s Military Benefits:

Under the USFSPA a former military spouse is eligible for full medical, commissary and exchange privileges when the following apply to the marriage.

  • The marriage last at least 20 years.
  • The military member performed at least 20 years of service creditable for retired pay.
  • There was at least a 20 overlap of the marriage and the military services.

If the spouse remarries, eligibility for benefits is terminated. The benefits are revived if the subsequent marriage ends in divorce.

Child Support:

All military members have a duty to provide support for their children, as well as their spouses, so their wages may be garnished in order to ensure the payment of proper support. Child support may not exceed 60% of a military member’s pay and allowances. Unlike a civilian divorce, if you divorce a member of the military and they do not follow court orders pertaining to child support, you can go to their commanding officer for him. It is like having extra added protection against a deadbeat parent.

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