A Military divorce differs from a standard divorce in that one of the parties is active in the military. There are state and federal rules that must be following in this situation. They involve service as a military member, residency requirements for filing an action, and special rules regarding the division of military pensions. There are also rules regarding emergency support for the spouse and children.

The Service Members Civil Relief Act protects members of the military from civil lawsuit during the time they are on active duty. This law was enacted to enable service people to devote their entire energies to the service of our county. This includes petitions for divorce.

A court may delay legal proceeding for the time that the service member is on active duty and for 60 days following active duty. If your spouse is overseas or on active duty, the petitioning party can request that the military serve the service member, but the service member does not have to accept service.

Residency and filing requirements can also be different when one of the parties is in the military and seeking divorce. Either party in a military divorce has options as to where the divorce is filed. It can be filed in either in the state where the spouse resides; state where the military member is stationed; or the state where the military member claims legal residency (place where military member plans to live after discharge or retirement).

The laws of the state where the divorce action is filed govern the grounds for divorce and property distribution. Alimony, child support, custody and property division are determined by state statute. Military pensions are treated differently in a military divorce. The federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA), which governs the calculation and division of military pension benefits.

The USFSPA allows direct payment of a portion of a military retirees pay to the former spouse and extends some base privileges to certain former spouses. 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/her spouse in accordance with the laws of the state court.

The USFSPA does not contain a formula for calculating the appropriate division of retired pay, although up to 50% of a military member’s retired pay may be awarded to the other spouse. State laws determine the exact division of the retirement pay.

Legal counsel is needed for complicated divorce proceedings. If one of the parties is a military member, you should determine whether the divorce lawyer you consider hiring has experience in handling the military issues that will arise in your divorce.


Comments are closed.