Filing a divorce while on active duty military.
Is there a divorce for active military spouses called a "military divorce"? The short answer is no, but there are some differences when you are in the military.
DIVORCE FOR MILITARY FAMILIES
Is a military divorce different than a civilian divorce?
Although there is no such thing as a "military divorce", there are some things that are different between a divorce involving civilians and active duty military. When you are in active duty military, or married to someone who is active duty military, your divorce may involve some issues, such as:
- where you can file the divorce
- how support is calculated
- child custody and visitation
- pension rights
These are some of the areas where a person filing a divorce who is active military may have some differences.
Filing for Divorce
If you are active duty military and stationed overseas, or in a new State, you have the option to file in your home-state of record. This allows you to file a divorce even if deployed in a different country. Because the court which grants the divorce must have jurisdiction over you and your spouse, the divorce filed by active military members can be filed in the person's home-state, even though they may not be presently residing in that State.
This is not an option for civilians. If a civilian is residing in another country, they must file in that country, or wait until they are again residing in the United States.
In most cases, the military member files in the state where they are currently residing. This makes the process easier because the court's are local and they don't have to travel for any required court appearances.
Child Support and Spousal Support
The military takes the payment of support very seriously. The compliance rate for support payments by military members is much higher than in the civilian population. Child support is controlled by the state law where the divorce is filed. The child support calculations are based on the child support worksheets and child support calculators for each individual state, and a military status has no affect.
Spousal support is also determined by the Judge presiding over the divorce case.
Child Custody and Visitation
Child custody and visitation issues can be exceptionally challenging when in active duty military. When the spouses divorce, one former spouse may have to move to another state due to a duty assignment. The parenting plan for those families involving a parent who is active duty military should be carefully prepared to include provisions for the children to have time with both parents, even when in different geographical locations.
A parenting plan can be as custom and specific as needed to make sure that the children are able to spend time with both parents. The parenting plan can have several options for parenting time, dependent on different situations, such as out-of-country deployment. Communication is important, and can help the children to maintain a feeling of security when the parents are living far apart.
Property Division and Pensions in a Military Divorce
A military pensions is a retirement benefit provided to military service members. Military pensions are only paid out if the service member served for at least 20 years, or if serving in the Reserves or National Guard, have acquired the necessary points.
A former spouse is entitled to a portion of the military pensions. The Uniformed Services Former Spouse Protections Act permits state courts to apply the family law principles of their individual state when deciding how the military pension will be divided between the spouses.
Property of the marriage of military service members is divided the same as in a civilian divorce. The marital property is divided pursuant to the laws of the state where the divorce was filed.
Other Benefits of a Divorce involving Military Service Members
Spouses of former military personnel are eligible for continued benefits, including full medical, commissary and exchange privileges when:
- The couple was married for at least 20 years
- The service member performed at least 20 years of service toward retirement pay
- There was at least a 20 year overlap of marriage and military service
This is referred to as a 20/20/20 former spouse and is entitled to these benefits, including TRICARE and inpatient and out-patient care at a military treatment facility.
A former spouse can also be designated as a Survivor Benefit Plan beneficiary, which is an annuity that allows retired service members to provide continued income to a named beneficiary in the event of the retiree's death.
Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act (SCRA) , which is an expanded and improved version of the former Soldiers' and Sailors' Civil Relief Act, helps to protect the legal rights of those on active duty. This applies to all active duty military personnel, members of the National Guard who are on active-duty status, members of the reserve called to active duty, National Oceanic and Atmospheric Administration, Public Health and the Coast Guard serving on active duty in the support of the armed forces.
The SCRA helps active duty in many aspects, such as outstanding credit card debts, mortgage payments, pending trials, taxes and housing protections. In regards to divorce proceedings, service members may obtain what is called a "stay", which is a postponement of a divorce proceeding if they can show that their military service prevents them from having full access to the protection of their legal rights. An example would be deployment, or an upcoming deployment, which would hinder the persons ability to handle the divorce proceedings.
The SCRA also protects an active military person from having a default judgment entered against him or her due to the fact that the person was deployed and unable to attend a hearing in person. Before a court can enter a default judgment against a military member, the person filing the divorce must provide the court with an affidavit stating that the defendant is not in the military. If a default judgment is entered, the service member can file an application to reopen the case within 90 days after leaving active duty. The military service member would need to show that he or she was prejudiced and show that he or she had a legal defense.
CHOOSE YOUR STATE.
Helping military families file for divorce.