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 a little different than when both parties are civilians. Though the general process is similar in that couples need to determine asset division, child custody (if applicable), and other common matters, military service will inevitably affect some of these issues.
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?
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.
Check Your State Laws!
In a military divorce, where you file divorce may be different from the state where you married or where your spouse now lives.
One of the most complicated aspects of a military divorce is where to file for divorce. The transient nature of military service means that it may be unclear where the proper place is. Generally, the state where the military member is stationed, the state where the military member is a legal resident, or the state where the non-military spouse lives are all permissible places to file. This will be something that you want to talk to a skilled divorce lawyer about because the state where you file is also the state whose laws govern the divorce. Which state you choose may have huge impacts on the outcome of the divorce.
Division of Military Benefits
The military has something called the ten year rule. It allows ex-spouses of military members to receive direct retirement benefits if they were married for at least ten years and those ten years overlapped with ten years of military service. For example, if you were married for ten years, but your spouse was only in the military for five of those years, you would not be eligible for those benefits. However, if you were married for 15 years and your spouse was in the military during at least ten of the years you were married, then you would be eligible for benefits. Spouses who were married for less than ten years 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.
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 military service. If you meet these requirements you will also be eligible for healthcare services under Tricare, provided that you do not remarry.
Military divorces are governed by both the laws of the state that the divorce is taking place in and federal law that applies to service members. The military requires service members to provide “adequate” child support to their children. Most branches of the military have their own rules about the specific amount that needs to be paid. States also have their own formulas that will calculate a presumptive child support amount. Service members will need to make sure they follow both the military’s and the applicable state’s rules around child support. Ex-spouses who are owed back child support from a military spouse can go through the military in addition to civil courts to try to access support that is owed.
The military also may offer certain benefits for service members 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.