Special Considerations to Remember During a Military Divorce
Key Points
  • A divorce that involves military members must take into consideration all military rules and regulations.
  • The military servicemember may be able to file in their home of record (claim legal residence), or the state they are stationed in which is a special option civilians do not have.
  • There are unique laws that must be followed when divorcing a military spouse. These laws deal with military members being able to devote their time and energy to the defense of the nation rather than putting too much energy into the divorce process.

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. In any case, it might be better to think of these divorces as divorces involving military personal rather than military divorces.

The phrase military divorce is a misnomer. The military does not grant divorces; state courts grant divorces to persons who are in the military. However, at least four special considerations make a divorce involving a Service Member distinct from a civilian divorce. These considerations are 1) compliance with military rules and regulations; 2) the protocols for the receipt of service of process upon an active duty spouse; 3) the domicile or residence requirement for filing; 4) the division of the military pension, which is called retired pay, as described above.

One, two and three require special attention, particularly when the Service Member is out of the United States. The fourth -- the division of a military pension -- is not a factor in military of active duty personnel who are not career military, as is the case with many young Service Members currently in Iraq and Afghanistan.

Divorces by military personnel -- meaning actions ending marriages where at least one partner is in the military -- are controlled by federal and state law, as are military pensions and sometimes emergency child support. Service of process -- that is the delivery of divorce papers to the responding party -- and the establishment of residency requirements usually follow different routes than they do in divorce in civilian life.

Many states allow the military member or his or her spouse to file in the state where the service person is stationed; thus it does not matter whether the Service Member is a permanent resident as that term is generally understood. Military couples have three options when it comes to filing: 1) the state where the nonmilitary spouse resides; 2) the state where the military spouse is stationed; 3) the state where the military member claims legal residence.

Three unique laws affect a divorcing military spouse. They are as follows: the Service Members’ Civil Relief Act (SCRA), which is the amended Soldiers’ and Sailors’ Civil Relief Act (SSCRA) of 1940; the Uniformed Services Former Spouses’ Protection Act (USFSPA) of 1982, as described above; and the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents.

SCRA protects military men and women from civil litigation (including divorce), so that they are able "to devote their entire energy to the defense needs of the Nation." As described above, USFSPA deals with the division of retired military pay and the continuation of certain benefits to former military spouses. The Hague Convention covers the service of process abroad and may in a few cases be a factor when children are involved.

(In addition, should the military spouse (who is usually the husband) be a party in a criminal action that involves his military service, he may be subject to a court martial, rather than a civilian court.)

SCRA is important in a military divorce because the military spouse can use it to stop a divorce. The military spouse can request a delay in the proceedings and provide proof that his military duties prevent him from obtaining proper representation in court. Service members on extended deployments or overseas assignments, such as Iraq or Afghanistan, generally receive SCRA coverage in divorce litigation. This coverage also extends to National Guard and active duty reserve service members on tours in Iraq and Afghanistan.

As it applies to divorce, the service member may delay a legal proceeding for the time he or she is on active duty plus 60 days beyond the end of his or her enlistment.

As described above, USFSPA important in a military divorce because it establishes the rules by which the retired pay of a service member is divided and distributed. For a career military person, this retired pay may be the largest asset he or she has. In a divorce, military retired pay is property, not income.

USFSPA also establishes guidelines under which a former military spouse retains full medical, commissary and exchange privileges.

Under USFSPA, a former military spouse is eligible for full medical, commissary and exchange privileges when 1) the marriage lasted at least 20 years, 2) the military spouse performed at least 20 years of creditable service for retired pay, and 3) there was at least a 20 year overlap of the marriage and creditable military service.

International law could become relevant when divorcing a military member who is overseas.

The Hague Convention on Service Abroad of Judicial and Extrajudicial Documents is most likely to come into play when there are children who have improperly or illegally been removed from a custodial parent.

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Suggested Reading
Divorce & the Military II 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.

Author: Marsha L. Thole and Frank W. Ault

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