Military divorce is similar to civilian divorce in almost every way. In general, divorce is governed by state laws. That said, due to a number of federal laws, there are a few additional things that must be addressed in a military divorce.
“Military divorce” is a lay term and not a legal term. A divorce is a divorce. Military divorce is a divorce where at least one of the parties is active duty military, reserve or guard, or retired military. Divorcing military couples must meet the same legal requirements as any other couple.
Where Do I File for Divorce?
In a civilian divorce, the petition for divorce is filed in the state where the couple resides. In a military divorce, there can be a choice of states: the state where the service member claims legal residency, the state where the non-military spouse resides, or (often) the state where the service member is currently stationed. A lawyer can help you choose the best option.
The laws of the state in which the divorce proceeding is filed will govern how the divorce proceedings and most of the divorce-related issues are decided, including child custody and visitation, child support, spousal support and the division of property and debts. The highly mobile military lifestyle can make issues of child custody and visitation particularly complicated.
Does Overseas Deployment Make a Difference?
Service members who are deployed overseas are expected to concentrate on only one thing - their military duty. Dealing with a divorce can be a dangerous distraction.
As a result, the Servicemembers Civil Relief Act allows a deployed service member who is unable to take leave to postpone the case until he or she returns to the United States. In addition, the service member has at least an additional 90 days to respond to the filing. Alternatively, the service member can retain a lawyer and allow the divorce case to proceed without his or her presence.
What about Benefits?
Under the Uniformed Services Former Spouse Protection Act, some former spouses can continue to use the commissary, exchange and military medical facilities. Both the marriage and active duty service must have lasted at least 20 years, with a 20-year overlap between the two. If the overlap is 15 years, the former spouse has access to these services for one year. If the overlap is less than this, there is no access to these services once the divorce becomes final.
In addition, the former spouse will lose access to military housing.
How Is a Military Pension Divided in Divorce?
Service members who retire after at least 20 years of active service are compensated with a retirement pension. A spouse who has been married to a service member for 10 years (overlapping with active service) are entitled to half of this pension, at the time the service member retires. However, division of the pension is negotiable and a former spouse can trade these rights for something else. This must be clearly spelled out in the divorce agreement.
The military Survivor’s Benefit Plan allows a spouse (or former spouse) to continue receiving pension payments if the service member dies first. Being named beneficiary of the Service Members Group Life Insurance policy protects a family if the service member dies and can no longer pay support.
Call a Military Divorce Lawyer
The issues surrounding military divorce can be complicated. A military installation’s legal assistance office can provide some information, but cannot represent either party in state court. Plus, the facts of each case and the laws in each state are unique. This article provides a brief, general introduction to the subject. It is not legal advice. For more detailed, specific information about your situation, please contact a divorce lawyer who has experience in the area of military divorce.