A military divorce occurs when one or both spouses are in the military and are getting a divorce. Military divorces have additional challenges on top of the expected emotional, financial, and legal complexities of a civilian divorce due to the intersection of state and federal laws. A military divorce attorney who understands these cases is crucial to the success of your case.
When you are a father who is in the military or you have a spouse in the military, it is essential that you understand the differences between a military and civilian divorce. Some of the differences are only applicable to active-duty service members, while other differences apply whether a spouse in the military is a veteran, deployed, or at home.
The Difference in a Military Divorce
Unique federal laws impact what jurisdiction applies to a divorce, how a civilian spouse files, how the division of property is handled, and other aspects of a divorce.
Active-Duty Protections
When a service member is on active duty, they have unique protections under the Servicemembers Civil Rights Act (SCRA). This protects them from certain civil legal proceedings, postponing them until the service member returns.
In a civilian divorce, a spouse who files for divorce could obtain a default divorce if their spouse does not respond to the divorce petition. The SCRA prevents this from happening to a military spouse if they are unable to respond because of their duty, but the spouse must request this postponement.
Filing Under a Specific Jurisdiction
The jurisdiction where a spouse or couple files under impacts which court has a say in their divorce. In a civilian divorce, spouses are only able to file in the state where at least one spouse meets the residency requirements, typically where the couple lives. In a military divorce, you may be able to file the divorce in the state where a civilian spouse resides or where a military spouse is deployed. Military divorces are frequently filed under federal jurisdiction.
The jurisdiction matters because each state has its own laws for property division, preference for child custody, and other laws. It’s important to discuss this with an attorney before filing so that you can decide which jurisdiction helps your family’s future the most.
Dividing Military Benefits in Property Division
The Uniformed Services Former Spouses’ Protection Act (USFSPA) determines how a civilian spouse can receive a portion of military benefits after a divorce, including the military pension.
A military pension is considered marital property. These military retirement benefits are divided between ex-spouses, and the amount that each spouse receives depends on the length of their marriage, the length of the service member’s active duty, and the duration that these two periods overlap with each other. A civilian spouse may also be eligible to receive military healthcare benefits and commissary privileges for up to a year after their divorce. They may even receive them for the rest of their life in unique cases.
Because many military couples use a VA home loan, this further complicates the division of marital assets. Often, selling the marital home is not an option.
Unique Custody Complications
When a parent is an active service member, it can be harder for them to obtain custody. The court will always consider a child’s interests, and a parent in the military must be ready to address how they will care for their children when they are deployed. Working with a skilled attorney can help you advocate for you and your children’s interests.
FAQs
Q: Is a Military Divorce Different From a Civilian Divorce?
A: Military divorces are different because there are different rules and laws under military and federal guidelines. These divorces must handle the typical aspects of a divorce, including spousal support, child custody, division of property, and child support.
One difference is the additional protection that active service members have against default decisions. There are also unique requirements for dividing military benefits, and a civilian spouse may be able to obtain military health care. Military service members also have limits on paycheck deductions if support is taken from their paycheck.
Q: What Is a Military Spouse Entitled to in a Divorce?
A: Military spouses are entitled to the same benefits as other spouses, meaning that they are owed a portion of marital assets. Marital assets are any assets gained during the marriage. Under the USFSPA, military pensions are divided between spouses, and the law determines how much of those benefits are paid to a civilian spouse based on the length of the marriage and how much a military spouse’s active duty overlaps with the marriage. Civilian spouses are not entitled to military disability benefits.
Q: What Is the 10-Year Rule in Military Divorce?
A: This rule, commonly called the 10/10 rule, refers to the duration of the marriage and the spouse’s length of service in the military. This means that a couple’s marriage has lasted for at least 10 years, and the spouse in the military has 10 years of active duty that overlap the marriage for at least 10 years. If a couple meets these requirements, the spouse who was not in the military has direct access to retirement benefits. Otherwise, the retirement benefits are still split, but the military spouse sends the portion to their spouse.
Q: What Is the 20/20 Rule for a Military Divorce?
A: There is a 20/20/20 rule and a 20/20/15 rule. The 20/20/20 rule means that a military spouse served at least 20 years, the couple was married at least 20 years, and these periods overlapped for at least 20 years. When these periods overlap at least 15 years, this meets the 20/20/15 rule.
When a couple meets the 20/20/20 qualifications, the non-military spouse qualifies for their own TriCare health plan and other benefits for the rest of their life until they remarry. Under the 20/20/15, the civilian spouse keeps TriCare benefits for up to a year after the divorce.
Contact Stange Law Firm to Protect Your Rights
When you are a father and are in the military or the spouse of an active service member, it is essential that you understand your rights. These include your rights to benefits, your rights to custody, and the unique requirements of a military divorce. A compassionate and experienced attorney at Stange Law Firm can help you through these proceedings. Contact our firm today to learn how we can help.
