If one or both spouses in a marriage are in the military, the process and the concerns of the parties in a divorce may be somewhat different than when both parties are civilians. Though the general process is similar in that couples need to determine asset division, support, child custody, and other common matters, military service will inevitably affect a divorce.
Military Divorce: Special Considerations
1Where will your divorce be filed?
2If deployed or on active duty, what will child custody arrangements be?
3How will you split up military pension(s) and benefits?
Timing of a Military Divorce
The Servicemembers Civil Relief Act (SCRA) protects service members from civil suit while on active duty and for 60 days afterwards, at the court’s discretion. This includes divorce. However, while this rule may slow the divorce process somewhat, it will not be stopped. The court will generally review each individual situation and stay the divorce only for as long as it deems reasonable given the circumstances of the active duty spouse.
Jurisdiction in a Military Divorce
The transient nature of military service can complicate the proper place to file for divorce. Generally, the state where the military member is domiciled, the state where the military member meets residency requirements, or the state where both spouses consent to divorce are all permissible places to file. Divorcing spouses should note that states may have specific residency rules for military members and may consider a military member a resident even if they are stationed in another state. Since these jurisdictional rules can be complicated, and the state in which a divorce is filed will determine which state’s laws govern the divorce, military spouses usually benefit from hiring a lawyer experienced in these issues.
What Is a Domicile?
A domicile is a legal term that refers to the place that an individual treats as their permanent home. Determining an individual’s domicile is a factual analysis that may include information such as:
Where the individual is registered to vote
Where the individual owns a home
Where the individual pays state income tax
The individual’s address on legal documents, such as a will or an insurance contract
The military term “home of record” does not necessarily indicate an individual's domicile.
A military spouse filing for divorce when one or both spouses are overseas should not file for divorce in a foreign country. Among other concerns, the military will not honor a pension division order from a foreign country. Instead, a military spouse should file for divorce in the United States, using the same jurisdictional analysis as above. A skilled divorce attorney can help a divorcing military spouse navigate the nuances of accomplishing a divorce while one or both spouses are abroad.
Division of Military Benefits
Ex-spouses of military members may qualify for direct payment of a share of the military member’s retirement benefits if they meet the 10-year rule. An ex-spouse qualifies under the 10-year rule if they were married for at least 10 years, and those 10 years overlapped with 10 years of military service. For example, an ex-spouse married for 10 years to a spouse in the military for five of those years would not be eligible for direct payments. However, an ex-spouse married for 15 years to a spouse in the military for at least 10 of those years would be eligible. Spouses who do not meet the 10-year rule are still probably entitled to a portion of the benefits earned during that time, but it will likely be paid from one spouse to another instead of a direct payment from the military.
Hire a Lawyer
A lawyer will probably be necessary to identify military benefits, especially retirement benefits, and help with the corresponding special division orders. Justia offers a lawyer directory to simplify researching, comparing, and contacting attorneys who fit your legal needs.
Former spouses of military members may be able to hold onto base privileges such as commissary and theater privileges. In order to be entitled to those benefits the spouses need to be married for at least 20 years, and those 20 years need to have overlapped with at least 20 years of military service. Ex-spouses who meet these requirements are also eligible for health care services under Tricare, provided that they do not remarry and do not have health insurance through their employer. Ex-spouses married for at least 20 years overlapping with at least 15 out of 20 years of military service may qualify for one additional year of medical benefits after divorce. Divorcing spouses may also be eligible for transitional coverage through the Continued Health Care Benefit Program.
Even if a spouse would not qualify for a certain military benefit after divorce, they may be able to negotiate for increased support payments to account for the benefits lost, such as health care services.
Child and Spousal Support in a Military Divorce
Owed Child Support
Ex-spouses owed back child support from a military spouse may pursue that debt through the military in addition to civil court.
Divorcing military spouses will need to consider both the military’s guidelines on family support and the guidelines of the state in which they have filed for divorce to determine appropriate child and spousal support obligations. As with any support determination, the calculation will be influenced by each spouse’s income. However, a military spouse’s income is calculated by using a Leave and Earnings Statement, rather than a tax return. Divorcing spouses should also factor in the military spouse’s unique military benefits, such as reduced-cost housing or a food allowance. Divorcing spouses should consider any expected change in circumstances that could affect income and benefits, such as mobilization. Support obligations do not automatically change or cease if a spouse’s circumstances change. Instead, divorcing spouses should do their best to account for foreseeable changes in their initial support agreement or ask the court for a new order before the changes take effect.
Child Custody in a Military Divorce
Child custody decisions involving a military parent may look very similar to those involving non-military parents. Military status does not change a parent’s right to custody or visitation, although a parenting plan may take into account military-specific scenarios, such as how custody or visitation plans would change if a parent is deployed. Military members are protected from default child custody judgments. Some states have additional laws that restrict permanent custody decisions while a military member is deployed or prevent a court from holding a military parent’s lack of contact with a child against them in a custody decision if the lack of contact resulted from their military service.
Resources for a Military Divorce
The military also may offer certain resources for spouses going through a divorce. For example, some bases may have attorneys that can assist you, though generally they will not be able to represent you during the divorce. You will probably need the services of a skilled divorce attorney knowledgeable in the state laws of the governing state. A lawyer experienced in military divorce can help both the service member and non-service member spouses understand their rights and responsibilities during and after the divorce.