Military Divorce 2

One of the standard pleadings in a divorce petition is a declaration or denial that one or both parties are active duty members of the U.S. armed services (or her allies). The reason for the boilerplate language is the Servicemembers Civil Relief Act, which entitles active duty service members to delay a divorce (or any civil litigation). But it’s not just timing that is affected by a party’s military service. Dividing retirement accounts, determining spousal support and setting child support can also be affected by a party’s military status.

Servicemembers Civil Relief Act

Under the provisions of the federal Servicemembers Civil Relief Act, a court can delay legal proceedings for as long as a service member is on active duty and for up to 60 days thereafter. This includes a divorce.

Service and Jurisdiction

Even getting a divorce on filed and moving forward can be a bit tricky if one party is in the military. An active duty spouse, like any other spouse, must be personally served with the divorce documents in order for the state court to have jurisdiction over him or her. A spouse serving overseas and/or deployed will be nearly impossible to serve. They can voluntarily accept service but if they do not, you may have to wait until they return stateside to start the divorce process.

Residency and Filing Requirements

Military members and their spouses will generally have three options for where 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

Property Distribution (including Pensions)

Division of marital assets and debts typically depends on whether the jurisdiction applies community property or equitable distribution theories, and whether there was a prenuptial agreement. Division of retirement accounts and benefits is handled in the same manner and is usually divided by use of a Qualified Domestic Relations Order (QDRO). A military pension, however, is handled differently 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 military pension can still be considered separate property or partially separate (non-marital) property, depending on the date of marriage, date of accrual and state law. Up to 50% of a service member’s retired pay may be awarded to the other party in a divorce. State law  (and the court) will determine the exact division of the retired pay. The award must be couched in terms of percentages as opposed to specific dollar figures.

USFSPA permits a former spouse to receive his or her percentage of the retired pay directly from the finance center, based on the number of years married concurrent with military service. The computation of the total amount of retired pay attributable to a service member is made based on his or her rank at the time of retirement, not at the time of divorce.

Former Spouse’s Military Benefits

Under the USFSPA, a former military spouse may be eligible for full military medical, commissary and exchange privileges after a divorce. In order to qualify for said benefits, the marriage must have lasted at least 20 years; the service member spouse must have served at least 20 years of service creditable for retired pay and there was at least a 20 year overlap of the marriage and the military service (i.e., if a 45 year old soldier retires after 20 years of service and then marries, his wife would not be eligible for these benefits if they later divorce at age 65).

And if the spouse remarries, eligibility for these benefits of a former military spouse is terminated. The benefits are, however, revived if the subsequent marriage ends in divorce.

Child Support and Spousal Support

Determination of spousal support and child support in a case involving military pay can also be a bit more complicated than the norm. In addition to salary, any support calculation must take into account military allowances for quarters, rations, COLA and specialty pay.

All military members have a duty to provide support for their children, as well as their spouses, so the military quite simply allows wages to be garnished in order to ensure the payment of proper support.

Each branch of the military has its own rules which specify or suggest certain amounts for spousal support and child support. It is only the court of civil law that can grant the divorce and establish a legally enforceable support order.

Any military or non-military spouse contemplating divorce or other family court action is best-advised to seek assistance from a divorce attorney with experience handling military cases.

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Discussion

  • Callie

    My spouse is in the National Guard in NJ. We have agreed to divorce on basis of irreconcilable differences. We have signed and filed an MSA and I have served complaint and rec’d back Affidavit of service. We planned to wait the 35 days and I would enter request for default, however he’s now working at the base in NJ helping with some paperwork clean up. He returns to the house we both still live in daily. I also know he can request a day off so his ability to attend a trial date is not impacted by his service at the base.

    He does not intend to attend trial date anyway. But the NJ courts require Affidavit of Non Military status be submitted with Default request for trail and I cannot sign this.

    What are other options for moving this divorce forward?

    Any advice would be truly appreciated! Many thanks!

  • Gi

    My son’s ex wife remarried a man in the military. They moved to Germany and my son can not see his son for 4 years. What can be done about this or child custody. It doesnt seem fail he pays custody when he cant see his son. What can be done?