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Military Divorce Issues To Consider

Just like their civilian counterparts, service members and military officers also face matters related to family law. However, a military member getting divorced must also deal with complex issues such as pension, retirement, child relocation and the like.

Service Member Relief Act Issues

In 2003, President George Bush signed into law the Service Member Relief Act (or SMRA). This law grants absolute right for a service member party of a divorce lawsuit to momentarily stop or “stay” the case for the period of time in which he or she is serving over seas.

The SMRA requires a minimum stay of 3 months or 90 days once it is granted. It may, however, be granted for a longer period of time based on the judge’s discretion.

An obligatory stay takes effect if the following circumstances are met:

  • The individual is in the military service
  • The individual has received notice of the divorce proceeding
  • The individual files a written application, which contains a date when the soldier may likely appear, as well as facts stating how military service affects his or her ability to appear
  • A form of communication from the soldier’s commander included in the application, stating that leave is not available as military duty prevents the individual’s appearance

In such situation, the soldier is able to stay the divorce if desired, until he or she is back from overseas and is able to participate in the proceeding. In some cases, however, the service member may choose to participate in the proceeding telephonically or through video with the consent of the other party and the judge.

Military Divorce Retirement Issues

Military retirement and disability is a common source of misunderstanding among both military men and women. Many believe that if a couple is not married for ten years, then the non-military spouse is not entitled to a percentage of the military spouse’s retirement. This notion is incorrect.

Under 10 U.S.C. 1048, state courts have full authority to apportion military retirement accounts as if the case were a civilian divorce. In fraudulent scenarios, the state court may also choose to allocate disability benefits. An example of such case is when a retired serviceman attempts to transfer his or her retirement into disability in order to aggravate the former spouse’s ability to collect retirement.

The military spouse is liable to pay a percentage of his or her retirement to the ex-spouse in all cases. It depends on the number of years of marriage a spouse was serving in active duty. The source of misunderstanding likely comes from the 10/10 rules, which gives a former spouse a direct payment option from the Department of Defense when the military spouse served in the military for ten years and the couple was also married for ten years.


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