Property & Financial
Military and Divorce
Military divorce, is defined as a divorce where one of the parties (the "service member") is active duty military, reserve or guard, or retired military. This is not a "legal" term that is recognized within the context of the law, but a lay term used to describe a divorce where one of the parties is a service member (regardless of the member's status).
Being a service couple does not exempt the parties from the same requirements that civilian couples must meet when filing for divorce. However, there are some states that have relaxed the residency requirements for active duty service personnel who want to file for divorce in the state in which they are stationed.
Military couples will also go through the same procedural process when divorcing. But they must also be aware that there are other factors that the typical civilian couple will not have to address, and which may prolong the process because of the very nature of one of the party's military service, such as an active duty assignment in a remote area, or a permanent station overseas.
Besides understanding the basic divorce process, it is imperative that military couples are knowledgeable in the factors that will affect their divorce as a result of military service. In fact, it may be even more important to know about the federal law that divides military retired pay, as your attorney will be the expert on your state's own laws about divorce.
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What you need to know:
- The Federal Law that Awards Military Retired Pay: If you are a typical civilian couple who is divorcing, you must primarily be concerned with the laws of the state in which you are divorcing.
- Uniformed Services Former Spouse's Protection Act (USFSPA): The USFSPA applies to all active duty, reserve/guard, and retired military, the U.S. Coast Guard, and members of the U.S. Public Health Service (USPHS) and the National Oceanographic and Atmospheric Administration (NOAA).
- Myths that Have Caused Problems: Military couples have found themselves in financial trouble and drawn-out negotiations because of their misbeliefs regarding the USFSPA.
- Examples of Problems You and Your Spouse Need to Address: While a similar group of questions (below) could be asked of any of the factors that are, involved in military divorces, the following will serve as one example that illustrates your need to know how your divorce will be affected by the USFSPA.
- Factors that Affect Military Divorces: Just as in a civilian divorce, a military divorce will involve procedural requirements, property distribution, and perhaps child support or maintenance.
- Federal Benefits and Financial Management to Consider in the Negotiation Process: Divorcing before the service member has attained 20 years of creditable service for retired pay purposes can be detrimental to the non-military spouse.
- Controversies that Have Caused Court Appeals and Cost Money: There are numerous controversies, as analyzed from divorce court appeals, that have caused problems for military couples.
- Hiring an Attorney: The most critical step you will take in your divorce, besides educating yourself about the USFSPA, will be your selection of an attorney. You would not go to a dentist to set your broken leg in a cast, would you?
- What Attorneys Need to Know About Military Divorce: Any attorney knows that the lack of communication is one of the biggest complaints of clients. Add to it the lack of education (on the attorney's or client's part, or both) on the federal law that awards military retired pay, and you have the ingredients for not only angry clients, but also for other problems, not the least of which could be a malpractice suit.
- What You Need to Do Right the First Time to Save Money: The majority of military people have very little information, or no idea, about the law that affects their retired pay in a divorce.
- Special Considerations to Remember: Like the civilian population, divorces in the military happen among couples with marriages of all durations -- from 20-year careerists, as discussed above, where the division of retired pay and benefits is a major issue, and to young service members in first and second enlistments who are far from retirement, such as those now serving overseas in Iraq and Afghanistan.
- USFSPA: Attention Must be Paid: Probably the most salient difference between a military divorce and a civilian one is that state courts divide retirement benefits ("retired pay") according to the Uniformed Services Former Spouses' Protection Act (USFSPA).
- The Voluntary Separation Incentive (VSI): The VSI is a particular kind of military retirement benefit that sometimes enters into military divorce settlements. VSIs are one of the two main types of military early retirement programs. VSIs and Special Separation Benefits (SSBs) are two ways the military eliminates officers whose careers are not advancing.
- The Service Member's Civil Relief Act: The Service Members' Civil Relief Act is the amended version of the Soldier and Sailors Civil Relief Act of 1940 (SSCRA), a federal law governing (and protecting) military personnel from certain applications of civil law.
- Military Divorce: Not As Complicated as Perceived: It usually is no more complicated than any other divorce, particularly if both spouses are in the United States.
- Locating a Service Member Spouse: Like civilians, a spouse who separates after marriage must be located, and here a military couple enjoys an advantage. A military spouse is probably easier to locate in many cases than a missing civilian spouse.
- The Mechanics of Divorcing in the Military: As a rule, a divorcing spouse cannot serve a military spouse by mail, but the question may be tied to jurisdiction and the location of the military spouse.
- Child Support in the Military: An active duty military spouse can be sued for child support. As mentioned above, SCRA doesn’t provide immunity from the responsibilities of parenthood. Like civilians, all military members have a duty to support their children and their spouses, so their pay may be garnished to insure the payment of proper support.
- Child Custody and Visitation in the Military: A military spouse can argue for child custody, but the decision may be complicated by military obligations. At one time there was a sort of unspoken presumption against service members obtaining custody, particularly when men dominated the ranks of the military. This is apparently no longer the case.
- Spousal Support in the Military: A military spouse on active duty can be sued for spousal support because like child support, military service does not exempt a person from spousal support.
Useful Online Tools
||Divorce & the Military II
DIVORCE AND THE MILITARY II is the newly published comprehensive guide for military members (active duty, reserve/guard, and retired), spouses, and their attorneys, on the Uniformed Services Former SpousesŐ Protection Act (USFSPA). The USFSPA is the federal law that permits the award of military retired pay in a divorce.
Marsha L. Thole and Frank W. Ault
Resources & Tools
PROPERTY DIVISION -- The Uniform Services Former Spouse Protection Act (USFSPA) allows state courts to treat disposable retired pay either as property solely of the military member or as property of the member and his spouse. The USFSPA authorizes direct payment of a portion of a military retirees pay to the former spouse and extends some base privileges to certain former spouses. Although up to 50% of a military member’s retired pay may be awarded, state law determines the exact division of the retired pay.
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Divorce & the Military II
A Guide to Child Support Enforcement Against Military Personnel