Introduction
Many things you will do in the military will be much different than you would experience them in civilian life, and the same is true for getting divorced. If you or your spouse are in the military and you are divorcing, you will experience common issues that other couples who are divorcing face, but you will also go through a different process.
Divorce is difficult for anyone, but if one of you is in the military, it can become very complex. Civilian divorce may be resolved between the spouses without the use of a lawyer. A military divorce on the other hand poses unique challenges a lawyer knows how to navigate.
Where to File
When civilians divorce, they file in the county or city where they have legal residence. Normally, the person who is filing for divorce does so in the state where they have lived for at least six months. This may be more difficult for military members.
The first thing to determine is what state handles the division of pensions under the Uniformed Services Former Spouses’ Protection Act. Federal law indicates that the military member’s state of legal residence always has the power to divide pension in a divorce. Therefore, if you file in a state that is not the legal residence of the person in the military, that state may not legally be able to divide military pension.
Delaying the Divorce
In a civilian divorce, the spouse who filed serves divorce papers on the other spouse, and that spouse must file an answer within so many days. Under federal law, the normal court schedule in a military divorce may be adjusted, especially if the military member is on active duty.
An active-duty service member may request a delay in the proceedings known as a “stay.” This initial time period is 90 days, but it can be extended by the court. The purpose of the stay is to delay the action until the service member completes their tour of duty.
Military Attorney
The military has attorneys that can help military members in a divorce proceeding, although they cannot represent the military member. They are able to provide advice, write letters, review and revise documents, and negotiate on your behalf.
The spouse of a military member may also seek these legal services. Because the military attorneys cannot represent you, it is advised that you seek the advice of a civilian attorney who is familiar with military divorce law.
Child Support
Child support amounts are determined by state law, and it usually takes into consideration the basic allowance for housing, basic allowance for subsistence, and special pay of the person in the military. Once the court has determined child support, only the court can change it.
Servicemembers must provide adequate support for their children and each branch has rules on how much a military member should pay. The military attorneys can help you with your support amounts, but you want an attorney who will make the courts understand the various elements of military salary.
Most members of the military have a wage assignment that pays child support, but it must be approved by the Defence Finance and Accounting System.
Military Pensions
One of the key reasons that a military divorce is different from a civilian divorce is the handling of military pensions. There is a belief that you cannot get a share of the military person’s pension unless you have been married more than ten years, but this is not accurate. The courts can offer a non-military spouse any share of a military pension they believe is fair regardless of how long you have been married.
There is a 10-10 Rule that states that if you have been married for at least ten years while your spouse was on active duty, when your former spouse retires, your portion of the pension is sent directly from you out of the pension check. If you are outside of the 10-10 Rule, your former spouse must pay you the share of the pension the courts awarded.
If you are in the military and facing a divorce or you are in the process of divorcing someone in the military, you should reach out to an attorney who has experience with military divorces.
