Legally, divorcing military personnel face the same procedural problems of anyone ending a marriage. In the strictest sense, there is no such animal as a military divorce. A servicemember or the spouse of a servicemember receives a divorce under the laws of a state of residence. For example, an active duty soldier stationed in Texas who is from Pennsylvania may receive a divorce under the laws of Texas if he or she meets the residency requirements. A servicemember or a military spouse faces additional factors that can affect the divorce. The action, for example, can take longer if one of the parties is active duty in a remote location or has a permanent station overseas. Some jurisdictions have relaxed the residency requirements for active duty military personnel who want to file for divorce in the state in which he or she is currently stationed.
Moreover, besides understanding the basic divorce process, military couples must understand the Uniformed Services Former Spouses’ Protection Act (USFSPA), which applies to all military divorces after June 25, 1981. The USFSPA is a federal statute for the military, which guides it in accepting state statutes on such issues such as child support, spousal support and military retirement pay/pension. The USFSPA permits the states to classify military retired pay as property, as opposed to income. Dividing retired pay as property is the most salient difference between a military divorce and a civilian one. According to USFSPA, state courts may treat retirement pay as property and award up to 50 percent of it to the former spouse, and the former spouse may receive that money directly from the Defense Finance and Accounting Service (DFAS). USFSPA permits a former spouse to receive up to 50 percent of the military member’s retired pay directly from the finance center, based on the number of years married concurrent with military service. Moreover, the computation of the retired pay is made based on the rank of the servicemember at the time of retirement, not at the time of divorce.
To receive direct payments from DFAS, the service couple must have been married 10 years overlapping with 10 years of service. For example, the civilian spouse in a marriage of 12 years, where the servicemember was in the military for 7 of those 12 years of marriage, would not be entitled to a direct payment from DFAS. If the spouses were married for 12 years, and one spouse was in the military for 10 of those 12 years, the civilian spouse would be entitled to a direct payment from DFAS.