Factors that Affect Military Divorces

Key Points

Military and civilian divorce has the same procedural requirements, but there are other issues that may be specific to military divorce. Where you file for divorce to when the servicemember moves from active to reserve duty affect the military divorce.
Servicemembers often have benefits not afforded to civilians such as separation bonuses and the question would be if this bonus would be considered marital or community property and if the servicemember will be moving into a reserve or guard.
Where the servicemember files for divorce may also be a factor in divorce; some states are known to be more favorable to servicemembers.

Just as in a civilian divorce, a military divorce will involve procedural requirements, property distribution, and perhaps child support or maintenance. It is the division of military retired pay that presents some unusual considerations in military divorce.

In the process of doing discovery, your attorney will need information from you and also needs to know whether any of the factors will affect your particular situation. These factors include the following:

Jurisdiction-
The service member often has a choice of which state to file in, commonly known as "forum shopping." Some states are more favorable to the military member, others to the spouse.
Disability pay-
Is the service member already retired? Receiving disability pay? (from the VA or the military service?) Is the amount 100% or a lesser amount? If the military member is still on active duty, what possibility is there that he or she will apply for VA compensation? VA compensation reduces the amount of disposable retired pay going to the former spouse.
Active duty status-
If the service member is still on active duty, the decree must address the requirements of due process under the Soldiers’ and Sailors’ Civil Relief Act.
Separation bonuses-
Does the service member anticipate leaving active duty before the requisite 20 years’ service time is met for a military retirement? Does your state recognize such a bonus as marital or community property? if the member plans to join the reserve/guard, there are restrictions on the bonus and pay-back requirements. These situations must not only be anticipated, but addressed by the divorcing couple.
Transfer to the reserve/guard-
Are you and your attorney aware of how the members of the reserve/guard compute retirement time and earn points or pay for that time? If already a member of a Reserve Component, does the member have any "bad" years or inactive or IRR years? How much time has been spent in a non-paid status in the reserves? Do you know how to address such lapses in service time when computing the marital portion for the award of retired pay? (If you don’t know what a bad year is or what IRR stands for, you need help.)

If you cannot answer these questions easily, then you need to educate yourself on what these situations entail. Help is available through the book, Divorce and the Military II. You can use these questions, also, when interviewing an attorney to determine whether the attorney will be suitable to handle your divorce. In addition, you need to know about the federal benefits you may lose as a result of leaving active duty early (if you are the service member, even if you are considering transferring to the Reserves) or divorcing before the 20-year point (if you are the spouse).

Information Provided by: Marsha L. Thole

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