Military divorces are complicated. For most families, divorce can be complicated. This is primarily because it will involve several processes, documents and legal rules that may be unfamiliar at best and simply confusing at worst. 

When it concerns military families though, things can get a bit more complicated. Military divorce has a lot of special considerations. These are often contained in federal laws, as well as special regulations made by the heads of each uniformed service.

In most cases, these laws and regulations will also apply alongside state law and local procedure. Needless to say, this can introduce a lot of stress and difficulty. 

Understanding how the process works can help save you time, expense and emotional strain. Divorce is no doubt a challenging experience, but relying on competent advice from skilled professionals can ease the burden on you. 

Cranford Marshall Legal LLC is one of a select breed of law firms that provides assistance to military families contemplating divorce. Our practice is built on the foundation of thoughtful, discrete representation. 

We know how draining divorce can be, this is why our goal is to provide innovative legal solutions and solid emotional support to our clients during the trying period. In this article, we discuss some of the special considerations military families need to keep in mind when contemplating divorce. 

Divorce filing venue 

One of the most important considerations to keep in mind when filing for military divorce is the question of venue. The law typically allows parties to file divorce in the state where either spouse is resident. In most divorces, this means filing will be made in the state where the filing spouse lives permanently, or at least 60-90 days in a year. 

For military divorces though, it is important to first understand how the state handles the division of military pensions. Under the Uniformed Services Former Spouses Protection Act (USFSPA), only the state where the military spouse legally resides can divide military pension in a divorce. 

This means that if you file in a state other than that of the military spouse, the court may not have the authority to divide the pension. Although, the military spouse may consent to filing in another state, you want to be clear on the law before filing. 

Determining the legal residence of the military spouse may be a bit problematic however. Typically, military personnel may be stationed in several states for short periods over a number of years. Others may be stationed outside the US. In this situation, it will be difficult to determine their state of legal residence. 

However, there are some rules for dealing with this. A military spouse stationed overseas is deemed to be resident in the state that they intend to move back to after service. Apart from this, a military spouse stationed in any state may be able to file for divorce in that state, no matter how recently they were stationed there. 

While these rules may apply, it is important to keep in mind that they may vary depending on state law. Your military divorce attorney will be able to explain better how the law would apply to your circumstances. 

Applications to stay the divorce

In typical divorce cases, when one spouse files and serves divorce papers on the other, the responding spouse must file a response. This must be done within a specific number of days. 

For military personnel though, this might be a problem since they may be on active duty during the period. For such instances, the Service Members Civil Relief Act allows the military spouse to request a “stay”. 

Once granted, the divorce action will be “paused” for 90 days. In deserving circumstances, the court may also grant further extensions after the expiration of the 90 days. 

Note however that the stay only allows the delay of the court action. It cannot be delayed forever. Applications for a stay must be written, and this should ideally be with the help of a military divorce attorney. 

Child and spousal support payment 

The amount of child and spousal support is usually determined by state law. This means that whether equal or equitable distribution will be applied depends on state law. 

Before the court determines the amount of support though, it is possible to get assistance directly from the military. Service members are expected to provide adequate support for their children and each of the services has rules in this regard. You may check rules for the Air Force, Army, Navy and Marine Corps here. 

In determining the amount that should be paid as support, courts will need to understand the elements of a service member’s pay. For military spouses, the amount is usually based on their total emoluments, including allowance for housing, subsistence and special pays.

States may also provide for direct payment of support through “garnishment”. When such an order is made against a military spouse, it should be submitted to the Defense Finance and Accounting Service (DFAS). This applies for all armed forced except the Coast Guard. 

Child custody arrangements 

Many myths surround child custody and military payment. It was thought that service members had little chance of obtaining custody due to their military duties. However, that is far from the case. 

Each state provides guidelines for custody arrangements, and both spouses can develop a plan that is flexible enough to accommodate their job demands. 

With options such as virtual custody, through Facetime, Skype and other media, this flexibility is possible. Plans may be structured around holidays, time off and the needs of the child. 

In developing plans, parents will need to keep in mind the age of the children and possible changes in circumstances such as a new job, remarriage etc. 

How does divorce affect military benefits? 

The USFSPA primarily applies to the division of military benefits after a military divorce. It mostly applies to retired or inactive service members however. 

The Act allows state courts to treat military retired par as property upon divorce, amongst other provisions. It also provides a method of enforcing child and spousal support awards through direct payment. 

We’ll look at some of the benefits that apply under the Act, as well as others that you should keep in mind below. 

Health care and commissary/exchange privileges

After finalizing the divorce, unmarried former spouses may continue to qualify for medical (TRICARE) and commissary benefits. They must however meet the 20/20/20 requirement under the USFSPA. This means that: 

  • They must have been married to the military spouse for 20 years; 
  • The military spouse must have served for at least 20 years; and 
  • There is an overlap of at least 20 years between marriage years and military service. 

Former spouses that do not qualify under this requirement may qualify for medical benefits for 1 year after the date of divorce. However, they must meet the 20/20/15 requirement. The only difference here is that there must be at least a 15-year overlap between service years and marriage. Also, they will not be eligible for commissary, exchange or MWR privileges. 

Children residing with the former spouse will continue to be eligible for commissary privileges until the divorce is final. After the divorce, children may continue to use the exchange and MWR if they are dependent on the sponsor for over 50% of their support. 

Former spouses that are not eligible for TRICARE may buy the Department of Defense’s Continued Health Care Benefit Program (CHCBP). 

It must also be noted that former spouses must remain unmarried to continue enjoying the health care plan. Those that remarry will no longer be eligible. 

Military pension

As mentioned earlier, retirement pay may be treated as part of divisible marital property. A former spouse cannot receive more than 50% of this pension though. 

Where the 10/10 rule under the USFSPA applies, a former spouse’s share of the pension may be “garnished”. This means that the DFAS will pay the former spouse directly, instead of letting the military spouse make the payment. 

To qualify for the 10/10 rule, the parties must have been married for at least 10 years and the military spouse must have performed 10 years of creditable military service during the period. 

Military disability benefits

Military disability benefits are counted as non-divisible property. They are not counted in the USFSPA as part of marital property. However, service members must choose between retirement pay and disability benefits. 

While these benefits are not divisible, it does not mean that they cannot be considered in determining how to divide other property. 

Survivor benefit 

When a service member dies, military pension stops. Survivor benefit may provide payment of 55% of the selected base amount to a specified beneficiary after the death of a service member. 

State courts have the power to order that a service member participate in a survivor benefit plan with the former spouse as the beneficiary. The former spouse may however lose the eligibility if they remarry before age 55. 

Contact us at Cranford Marshall Legal LLC

As you have seen, military divorce involves numerous special considerations. To ensure that you fully understand your options, it would be best if you contact a competent military divorce attorney for advice. 

If you are contemplating a military divorce, take advantage of our expertise at Cranford Marshall Legal LLC. Call us on (334) 417-0399 to schedule a confidential case review today.