Military Divorce: Your Rights
Military divorce is different than civilian divorce. Like civilian divorce includes state statutes, military divorce includes separate rules regarding division of military pensions, residency requirements, legal protection for the military member and court orders pertaining to child support.
Do you have questions regarding your rights during military divorce?
Service Members Civil Relief Act:
- Military members are granted legal protection from divorce proceedings so they may “devote their entire energy to the defense needs of the Nation”.
- Courts are permitted to delay legal proceedings while the service member is on active duty and for up to 60 days following active duty.
Jurisdiction of the Court
- If the spouse of a military member seeks the military divorce, the active duty spouse must be served with a petition for a military divorce in order for a state court to have jurisdiction over the service member.
- If the active duty spouse is serving overseas or deployed in time of war, it may be requested that military authorities serve the active duty member.
- The active duty member has a right to refuse to accept the services and the court may instead serve the service member.
This is a lengthy and extensive process, so if your spouse is deployed overseas, it may be simpler to wait until they return home before beginning the process of military divorce.
Residency and filing requirements
Most states will permit the service member or spouse to file for military divorce in the state in which they are stationed. There are three options in regards to which state the military divorce is filed in:
- The state where the spouse filing resides
- The state in which the service member is stationed
- The state where the service member claims legal residency
Whichever state the military divorce is filed in, any decisions are governed by that state’s laws.
Property Division
Division of most property and assets depends on the laws of the state in which the military divorce is filed. Issues regarding military pension are governed by the Uniformed Services Former Spousal Protection Act (USFSPA). Division of military retirement pay is not mandated by the USFSPA. Division of retirement benefits is decided similarly to the division of property in a civilian divorce.
Former Spouse’s Military Benefits
Under the USFSPA, former military spouses are entitled to full medical, commissary and exchange privileges as long as:
- The marriage lasted at least 20 years
- The service member performed at least 20 years of service creditable for retired pay
Child Support
Child support may not exceed 60% of a service member’s pay. Unlike a civilian divorce, if a soldier does not pay child support you can go to their commanding officer about his/her neglect.
Any other questions regarding a civilian / military divorce can be answered by a divorce lawyer.
Do you have questions regarding your rights during military divorce?