The Defense Department states that the divorce rate among military couples has been increasing steadily over the last 10 years, from 2.6 percent in 2001 to 3.7 percent in 2011.
Military divorce may be defined as a divorce where at least one of the parties or the service member is active duty military, guard or reserve, or retired military.
Military Divorce Laws
Both federal and state laws govern military divorce laws. For instance, federal laws may affect where divorcing couples go to court, while state laws may affect how spousal support and alimony is issued.
Military divorces are no more complicated than civilian divorces. Military couples are not exempt from the requirements that civilian couples must meet when filing for a divorce. There are, however, some states with more relaxed residency requirements for active duty service personnel who wish to file for a divorce in the state that they are stationed in.
Military couples must be aware that there are a number of factors that civilian couples will not have to undergo. These steps may therefore prolong the divorce process due to the nature of a person’s military service, such as a permanent station overseas or an active duty assignment in a remote area.
In most instances, active-duty service members are protected from divorce proceedings. According to the Servicemembers Civil Relief Act or SCRA, U.S. service men and women cannot be sued and cannot begin divorce proceedings while they are on active duty, or for 60 days after active duty.
A court must have jurisdiction or authority to hear a case before it can grant a divorce to military members or spouses. While jurisdiction for civilians generally refers to where the person lives, it may refer to the place where the military personnel holds legal residence – even if he or she is stationed somewhere else.
Residency and Filing Requirements
States often reduce or eliminate residency requirements when it comes to military divorces. The law generally allows a choice of states for the filing of a military divorce: the state where the servicemember claims legal residency, the state where the non-military spouse resides, or the state where the servicemember is currently stationed.
The laws of the state where the divorce is filed will govern how the divorce proceedings and most divorce-related issues will be decided, including spousal support, child support, child custody and visitation, and division of property and debts.
Child and Spousal Support
Servicemembers, like everyone else, are legally required to support their children. Child and spousal support are mostly governed by individual states, although military spouses face unique issues. These include calculating support amounts, modifying support agreements, and enforcing support orders when the servicemember is deployed.
Child support calculations vary according to state, and usually take into consideration the special needs of the children, the number of dependent children, shared custody arrangements, the number of overnight visits the child has with the non-custodial parent, and other factors.
The court may enforce child and spousal support obligations through various ways, including through a court order, voluntary or involuntary allotment, and wage garnishment.
Without a court order for child support or a written agreement with both parents, every Service has regulations that require servicemembers to provide adequate support to their family members. Guidelines on family support differ with each Service, and help reduce financial strain until a child support order is finalized.
Child Custody and Visitation
Each state provides its own set of guidelines for custody arrangements, and many of these states require both parents to develop a flexible plan that meets both the needs of the child and the job demands of each parent.
When developing a custodial plan, military parents must consider the age of the children, what should happen when the servicemember deploys and returns from deployment, and a visitation schedule if the servicemember transfers out of the state or country. Custody plans may change based on a major change in circumstances, such as the age of the child, remarriage of either parent, new job for either parent, and other factors permitted by the state.
The Uniform Child Custody Jurisdiction and Enforcement Act rules on child custody require determining where a child has lived for the six months prior to the action being brought.
In most instances, the non-military spouse loses his or her ID card and privileges as soon as the divorce is final, unless he or she is a 20/20/20 spouse or 20/20/15 spouse.
According to the Uniformed Services Former Spouse Protection Act, former spouses may continue to use the commissary, exchange, and military medical facilities provided that both active duty service and marriage have lasted a minimum of 20 years, with a 20-year overlap between the two.
The former spouse has access to these services for one year if the overlap between the active duty service and marriage is 15 years. If the overlap is less than 15 years, the former spouse has no access to these services once the divorce is made final. The former spouse also loses access to military housing.
If a servicemember retires after at least 20 years of active service, he or she is compensated with a retirement pension. If a spouse has been married to a service member for 10 years that overlap with active service, then he or she is entitled to half of the pension when the service member retires.
In some cases, division of pension may be negotiable and a former spouse may opt to trade these rights in exchange for something else, which should be detailed in the divorce agreement.
If the servicemember dies first, the military Survivor’s Benefit Plan dictates that a spouse or former spouse may continue receiving pension payments.
A servicemember’s former spouse is not automatically granted any of his or her retired pay. Although federal law considers military retirement pay to be marital property, state law dictates if it will be treated as marital property and how the servicemember’s military retired pay will be divided between the parties.
Finding an Attorney
A Judge Advocate General (JAG) officer may be able to provide guidance on military benefits, although it is strongly advised to consult with a civilian divorce attorney experienced with military divorce within the local area. The legal assistance office is only allowed to offer guidance to either the servicemember or the spouse, but not both in order to avoid conflict of interest. A JAG officer is also not allowed to represent a client in family law court.