Military Divorce & Legal Concerns
Military divorce presents unique challenges compared to civilian divorce, due to federal laws and military regulations. While fundamental principles of property division, child custody, and spousal support apply, the mobile nature of military life and specific statutes like the Servicemembers Civil Relief Act (SCRA) require careful consideration.
The Servicemembers Civil Relief Act
The SCRA is a federal law that provides legal protections to active-duty service members in various civil proceedings, including divorce. It allows service members to request a postponement of court proceedings when their military duties significantly affect their ability to participate. Courts assess factors like overseas deployment or duty assignments that hinder communication or court appearances. If a service member demonstrates that military duties prevent their meaningful involvement, the court will pause the proceedings for 90 days and may pause them for longer if needed.
Establishing Jurisdiction and Domicile in Military Divorce
Determining where to file for divorce is crucial. Courts require a valid connection between the parties and the state in question. A service member may meet residency requirements in their state of domicile, even if stationed elsewhere. Domicile generally refers to the place where one intends to remain or return, supported by evidence like voter registration, property ownership, or state tax payments. The service member's home of record upon enlistment is not necessarily their domicile. If a service member is stationed in one state but maintains domicile in another, the residency requirements of that domicile may allow filing there.
Filing for Divorce While Stationed Overseas
Filing for divorce while stationed overseas presents particular difficulties, especially regarding the enforcement of orders related to military benefits. Many foreign jurisdictions lack the authority to divide U.S. military retirement pay, and the U.S. military may not recognize foreign pension divisions. Filing within the U.S. generally ensures that decisions regarding retirement pay and related benefits adhere to domestic law, improving enforceability. Service members and spouses stationed abroad often maintain ties to a home state and can file there.
Division of Military Retirement Benefits
The portion of a service member's disposable retired pay earned during the marriage is typically subject to division by the court. Disposable retired pay means the gross retired pay, subtracting certain authorized deductions.
One rule to keep in mind is the “10/10 rule.” This is a provision under the Uniformed Services Former Spouses’ Protection Act (USFSPA) that enables a former spouse to receive their share of the service member’s military retirement pay directly from the Defense Finance and Accounting Service (DFAS). To qualify, the couple must have been married for at least 10 years, and the marriage must have overlapped with at least 10 years of the service member’s creditable military service. This rule does not guarantee a share of the retirement pay, but it dictates how—and from whom—that share can be disbursed once a court has awarded it.
Spousal and Child Support in Military Divorce
State law governs spousal and child support amounts, although military-specific standards can be relevant. Courts assess the service member’s income, including base pay, housing stipends, cost-of-living allowances, and other entitlements reflected on the Leave and Earnings Statement (LES), to determine support obligations. When a service member’s pay changes due to deployment or reassignment, existing support orders do not automatically adjust. Modification typically requires seeking an amended court order. Accurate documentation of all sources of military pay and allowances is essential for assessing or updating support.
Child Custody Considerations in Military Families
Military parents are subject to the same custodial principles as civilians, with courts primarily considering the child’s best interests. Some states restrict permanent custody changes that are solely due to a parent’s military deployment. Courts may allow temporary adjustments to parenting plans or schedules during active duty or extended deployments, but those orders often require review upon the service member’s return. The goal in military custody arrangements is to maintain consistency for the child while recognizing the service member’s unique obligations. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) may also affect military families, particularly if they have frequent relocations.
