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Military service creates unique issues when it comes to divorce because certain rules apply in military divorces that are different from civilian divorces. Among the differences are:
- Compliance with military rules and regulations
- Obtaining service upon an active duty spouse
- Domicile or residence requirements for filing
- Division of the military pension
Governing Laws
Military divorces are governed by a combination of federal and state law. Military pension and certain emergency child support orders are dictated by federal law. State laws dictate the handling of all other matters pertaining to a military divorce.
Protection from Divorce Proceedings
Military personnel have some legal protection from divorce proceedings that are not granted to the public at large. Under the Servicemembers Civil Relief Act (
SCRA) military men and women are protected from lawsuits including divorce proceedings to enable them "
to devote their entire energy to the defense needs of the Nation." A court may delay legal proceeding for the time that the service member is on active duty and for 60 days following active duty.
Process Service
A state court will not be able to hear a case unless it has authority. The authority of a court to hear a case is called jurisdiction. Therefore, if the spouse of a military member is the one seeking a divorce, the active duty spouse must be personally served with a summons and petition for divorce in order for a state court to have jurisdiction over the military member.
If the active duty spouse is overseas or deployed, you may request that military authority serve your spouse, but your spouse must consent to service. If your spouse will not consent, you may request the court to appoint an officer of the court to serve the papers unless your spouse is serving on a ship or at a shore installation.
Residency and Filing Requirements
Many states allow a military member or spouse to file for a divorce in the state where the military person is stationed, even if neither the military member nor the spouse is a resident of that state. These states will often reduce or eliminate the residency requirement for military divorces.
A military member or spouse has a choice of the following three states in which to file for a divorce:
- State where the spouse resides
- State where the military member is stationed
- State where the military member claims legal residency (place where military member plans to live after discharge or retirement)
Although either spouse may file for divorce in any of the three locations listed above, the allowable grounds for divorce and property distribution are governed by the laws of the state where the divorce action is filed.
Grounds for Divorce
Some states are ?
no fault? states while others have ?
for cause? grounds for divorce and some even have a combination of the two. A ?no fault? ground for divorce means that the only basis for divorce is that the marriage is irretrievably broken. Some traditional bases of divorce include adultery, abandonment, habitual drunkenness and mental cruelty.
Dividing the Property
Some states are equitable property states while others are community property states. In equitable property states, each spouse receives a distribution of ?
marital property,? which is property acquired during a marriage other than separate property, that is considered fair and equitable, but not necessarily equal. In community property states, each spouse is entitled to one-half of all marital property. ?
Separate property,? which is property that was owned by a spouse when they entered into the marriage as well as property a spouse receives during a marriage through inheritance or gift, is retained by the owner in both equitable and community property states.
While each state may have different laws regarding how family law cases are to be handled and property divided, the federal government has enacted the Uniformed Services Former Spouses? Protection Act (
USFSPA) that governs the calculation and division of military pension benefits. 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.
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.
Former Spouse?s Military Benefits
Under USFSPA, former spouses are eligible for full medical, commissary, and exchange privileges where all of the following conditions apply:
- 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 is terminated. The benefits are revived if the subsequent marriage is terminated.
Alimony
Alimony, or spousal maintenance, is the periodic payment of money from one spouse to the other. A court may award alimony in order to give the receiving spouse an opportunity to look for a job, update work skills, stay home with small children or attend school. Alimony is not automatic ? it depends on numerous factors, such as the financial condition of the spouses, their earning capacity and circumstances of the marriage.
Most alimony is ordered for a specific length of time. It is common for alimony to end upon the remarriage of the receiving spouse or the death of either spouse.
Child Custody and Visitation
Courts usually make custody decisions based solely upon what is in the best interest of a child or the best interests of children. To make this determination, courts consider many factors including:
- The child?s preference if the child is mature enough to make such a decision
- The ability of each parent to provide for the child?s physical, intellectual and emotional well-being
- Which parent is more likely to foster frequent and continuing contact between the child and the non-custodial parent
- Abusive or criminal conduct by either party
The court may award either sole or shared custody. Generally, in a shared custody arrangement, one parent has primary physical possession and the non-custodial parent has the standard visitation of basically every other weekend, alternating holidays and an extended period in the summer.
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.
Modifying Court Orders
In order to change your divorce decree or support order, you must ask a court to make the modification. Any agreements that you make with your former spouse without the court?s approval could be ignored by the court in a later modification hearing. The person seeking the modification generally needs to show that there has been a substantial change of circumstances.
If you are contemplating a divorce, you will probably want to consult with a qualified attorney, one who if knowledgeable about military law, regulations and concerns that are specific to military members and dependents, so that you receive the proper advice. An attorney experienced in military divorce law can help you save time, money and trouble.
Related Resources:Servicemembers Civil Relief ActUniformed Services Former Spouses? Protection Act