Navigating Military Divorce: What You Need To Know

A divorce is a difficult transition for any couple, but for military families, the process involves a unique and often confusing set of federal laws and practical challenges. The pressures of military life, from deployments to frequent relocations, add significant layers to an already emotional situation. At Modern Family Law, our attorneys have the experience to guide service members and their spouses through these specific issues, providing clarity and a forward-looking plan for a fresh start.

If you or your spouse is in the armed forces, your divorce will be handled by a state court, but it will be subject to special federal rules. This article provides a clear overview of the key things you need to know.

Where Can You File For A Military Divorce?

One of the first questions in a military divorce is deciding where to file the case. Due to frequent moves, military families may have several options.

Typically, you can file for divorce in:

The State Where The Service Member Is Currently Stationed

A common choice is to file for divorce in the state where the service member is currently living due to their military orders. This is often the most convenient option logistically. However, you must still meet that state’s specific residency requirements. For example, a state might require a person to live there for at least 90 days or six months before they are eligible to file for divorce.

The State Where the Non-Military Spouse Resides

The non-military spouse also has the right to file for divorce in the state where they have established residency. This is common when a spouse has moved back to their home state or has settled in a community and can meet the local residency requirements. Filing in the non-military spouse’s home state can sometimes offer a “home court” advantage, as they are familiar with the area and have a local support system.

The State of the Service Member’s Legal Residence (Domicile)

A service member may be stationed in one state but maintain a “domicile” or permanent legal residence in another. This is typically the state they consider their true home, where they are registered to vote, hold a driver’s license, and intend to return after their service ends. This provides an additional option for filing, even if neither spouse currently resides there.

Choosing the right jurisdiction is a crucial strategic decision, as state laws regarding property division and spousal support vary significantly. Our team can help you understand the advantages and disadvantages of each potential location for your case.

The Servicemembers Civil Relief Act (SCRA) And Its Impact

The Servicemembers Civil Relief Act (SCRA) is a federal law designed to protect active-duty service members from being disadvantaged in civil court proceedings, including divorce, while they are serving.

Postponing Divorce Proceedings During Active Duty

The most significant impact of the SCRA on the military divorce process is its ability to postpone proceedings. Suppose a service member can show that their military duties materially affect their ability to participate in the divorce case (for example, they are deployed overseas). In that case, a court can grant a “stay,” or a temporary halt, on the proceedings. As explained by the U.S. Department of Justice, this protection ensures that military members have a fair opportunity to respond to a divorce filing without their service obligations interfering. An initial stay is typically for 90 days but can be extended.

Dividing Military Retirement Pay: The USFSPA

One of the most valuable assets in a long-term military marriage is often the service member’s retirement pay. The Uniformed Services Former Spouses’ Protection Act (USFSPA) is the federal law that gives state courts the authority to treat disposable military retired pay as marital property and divide it in a divorce.

How the 10-Year Rule Works

There is a common misconception about the “10-Year Rule.” This rule does not determine whether a former spouse is entitled to a share of retirement pay; that is decided by state law and a judge’s court order. Instead, the 10-Year Rule relates to the method of payment.

If the marriage lasted for at least 10 years, which overlaps with 10 years of creditable military service, the Defense Finance and Accounting Service (DFAS) can make direct payments of the former spouse’s share to them. If the marriage was shorter than 10 years, the court can still award a share of the pension, but the service member is responsible for making those payments directly to the former spouse.

What the USFSPA Does and Doesn’t Do

The USFSPA permits state courts to divide military retirement pay; it does not create an automatic entitlement for the former spouse. The law also allows former spouses who meet certain criteria (such as the 20/20/20 rule, which involves a 20-year marriage overlapping 20 years of service) to retain certain military benefits like TRICARE health coverage and commissary privileges.

Child Custody & Support For Military Families

Child custody and support arrangements require special attention in a military divorce due to the realities of a service member’s career.

Creating a Long-Distance Parenting Plan

A standard parenting plan may not be practical for a military family. A military parenting plan must be detailed and flexible, accounting for potential relocations and deployments. It should include clear provisions for:

• Handling custody and visitation during deployments.
• Communication methods (video calls, email) to maintain the parent-child bond during separations.
• Protocols for revising the plan when a Permanent Change of Station (PCS) order is issued.

Calculating Child Support With Military Pay

Calculating child support requires a clear understanding of a service member’s total income. This includes not just base pay but also various allowances, such as the Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS). Our attorneys are experienced in identifying all relevant income sources to ensure child support calculations are fair and accurate according to state guidelines.

Child Custody & Support For Military Families

Child custody and support arrangements require special attention in a military divorce due to the realities of a service member’s career.

Creating a Long-Distance Parenting Plan

A standard parenting plan may not be practical for a military family. A military parenting plan must be detailed and flexible, accounting for potential relocations and deployments. It should include clear provisions for:

• Handling custody and visitation during deployments.
• Communication methods (video calls, email) to maintain the parent-child bond during separations.
• Protocols for revising the plan when a Permanent Change of Station (PCS) order is issued.

Calculating Child Support With Military Pay

Calculating child support requires a clear understanding of a service member’s total income. This includes not just base pay but also various allowances, such as the Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS). Our attorneys are experienced in identifying all relevant income sources to ensure child support calculations are fair and accurate according to state guidelines.

Get Experienced Guidance For Your Military Divorce

Navigating a military divorce requires knowledge of both state and federal law. The unique factors involved, from the SCRA to the division of retirement benefits, demand an experienced legal team that understands the system. Our attorneys are committed to helping military families find modern solutions that protect their rights and set them up for a successful future.

If you are ready to discuss your situation, we are here to help. Schedule a Consultation with our team to learn how we can support you through this process.