Retired Military Divorce - Divorce can have mental and emotional consequences, and a military divorce is no different. However, while a military divorce shares similarities with a regular divorce, some details set it apart.
A military divorce can take longer than a traditional civilian divorce, especially if the service member's spouse is on active duty or deployed at the time the divorce is filed. A military divorce can take anywhere from a few months to 24 months, depending on several factors, including state law.
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If you're going through a military divorce, you don't have to go through it alone. Allow a dedicated attorney to provide legal guidance throughout the process.
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Military divorce differs from civilian divorce primarily because one or both spouses are in unique situations. If one or both spouses are active duty service members, it can be challenging to get involved in the military divorce process, especially if one or both spouses are deployed.
Because of these potential difficulties, the law is intended to protect service members, even in situations involving their marriage and divorce.
While the procedures involved in a military divorce may be different, ultimately, the basis for a divorce is often the same. Military couples can have the same problems that civilian couples can, resulting in the need to end a marriage.
Federal law follows several rules for military divorces, including how military pensions are divided. State laws can affect other issues, such as custody and alimony. Specific state-level laws depend on the state where the couple is seeking divorce.
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Being a service member can add a level of complexity to divorce proceedings, due to certain rights granted under federal law.
Active duty service members have protection from lawsuits and the consequences of inaction under the Service Members Civil Relief Act (SCRA).
Usually, when a spouse is served with divorce papers, they have a certain amount of time to file their response with the court. If they do not, the petitioning spouse can ask the court for a default judgment.
If the responding spouse is in the military, however, they may not be able to provide an answer within the allotted time. Therefore, the SCRA protects service members from default judgments against them for failure to respond.
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Additionally, the law can delay proceedings if they are started while the service member is on active duty or within 90 days of their release.
Service members are given protection because it is unfair in the eyes of the law for a service member to do his duty and protect the country and also deal with legal proceedings. The law does not completely protect service members from legal process, but it does give them a greater opportunity to take care of their legal affairs when they are willing and able.
It is especially common for service members to move frequently, so it can be confusing to determine where to file for divorce.
You do not need to file for divorce in the state where you and your spouse were married. So there is some flexibility when determining where to file for divorce.
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Usually, you can file for divorce in the state where you or your spouse lived for at least six months or in the state where you file taxes. Residency requirements vary by state, so it's important to know what your state's requirements are before you apply.
The exact process and timeline for a military divorce usually depends on several factors, including the state's divorce laws and procedures, and whether the spouse in question is on active duty or deployed.
First of all, you need to determine if you (or your spouse) meet the residency requirements for the state in which you want to file for divorce. If you do, you can draft and file your petition in that state court and begin your divorce proceedings.
Depending on the state, you may need to include the grounds for the divorce in your petition. Grounds are legally recognized grounds for seeking a divorce, for example, irreconcilable differences. Some states do not allow no-fault divorces. Determine what grounds, if any, your state requires and accepts.
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Service members can request a delay in proceedings under the SCRA. If they meet all the requirements, it gives them a 90-day stay, with additional time if requested and granted.
Once the responsible spouses have been approved to participate in the divorce proceedings, they can file a response with the court. Once their answers are complete, the divorce can proceed like any other.
During a divorce, spouses must address essential issues before they can officially end the marriage. The discovery phase of the divorce allows both parties to obtain important information and evidence to build their respective cases.
Depending on state law, spouses may have to go to mediation if they are unable to agree on key issues. Mediation is a process that allows the couple to work collaboratively to reach a resolution on issues such as property division, alimony, and child support.
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If spouses are unable to resolve disputes together, either through or outside mediation, a lawsuit may be necessary. During a trial, a judge hears both sides and their witnesses and reviews evidence and documentation before making decisions.
In a military divorce, spouses must address some of the same issues that civilian couples deal with. However, there are additional details to consider when one or both spouses are service members.
During a divorce, the division of property, assets and benefits is a hot topic. Like civilian pension benefits, military benefits and pensions can also become subject to separation.
Military spouses have rights under the Uniformed Services Former Spouses Protection Act (USFSPA). Under this and state laws, state courts may treat pension payments as sole or community property. There is no exact formula for splitting the payment, as this is usually dictated by state law.
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The former spouse's military pension payment is determined by the Defense Finance and Accounting Service (DFAS) if the couple has been married for at least 10 years as long as this coincides with 10 years of service in the military. This is called the 10/10 rule.
In addition to receiving retirement benefits, former spouses of military service members may be eligible for additional benefits, including medical and commissary privileges, if the following apply:
Finding out about military pensions and benefits can be complicated. A divorce attorney skilled in handling military divorces can help you get what you are owed.
Like any civilian couple, military spouses may be entitled to alimony. Alimony, or spousal support, is the financial support of one spouse for the other. Alimony is not guaranteed, but the spouse can ask the court to grant it. If a judge decides it is just and necessary, he can award spousal support for a short period of time or permanently. Spousal support is governed by state law.
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If the spouses have children, one parent may be entitled to receive child support. Like spousal support, child support is a financial payment that one parent makes to the other for the care and maintenance of their child.
While the law provides certain protections to service members, it does not intervene when a service member must pay ex-spousal alimony or child support.
Child custody is one of the most critical parts of a military divorce, especially if one or both spouses are on active duty.
Spouses can create their own custody arrangements if they communicate well and agree, but if that's not possible, a judge can step in and create a custody plan that the court decides is best for the child.
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Child allowance can be assigned alone or jointly. Joint custody is possible even if one parent is active and engaged. In such a situation, the other parent takes care of the child while the custodial parent is away.
Any divorce can take time. Several factors contribute to the length of time it takes to finalize a divorce, including:
The same is true for military divorces, but it can take a bit longer to resolve a military divorce, especially if the spouse is seeking delays under the SCRA. This can lead to a long divorce process.
A military divorce can take an average of 2 to 24 months, depending on the details of each case.
Faqs For Military Servicemembers Going Through Divorce
A military divorce can be challenging. Have the help of a qualified divorce attorney. This can make all the difference in your experience and the outcome.
Divorce can be expensive, but a divorce attorney will only charge you for the services you need, allowing you to keep costs low. If you need limited assistance or more extensive representation, rely on a separate attorney.
At Unbundled Legal Help, we have a dedicated network of attorneys who are happy to help you. If you are going through a military divorce, contact us today and let us connect you with a divorce attorney in your area. The Uniformed Services Former Spouses Protection Act (USFSPA) was enacted in 1982 to provide financial protection for former spouses of a service member. The USFSPA focuses on the division of benefits earned during marriage. Disability pay is not covered by the USFSPA and cannot be divided under its terms.
As part of the USFSPA, the 10/10 rule allows direct payments to the former spouse from the service member's pension. To qualify under the 10/10 rule
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