While regular divorce already presents a series of complications, a military divorce is even more complex. There are special rules and requirements that apply to U.S. service members and their spouses when they divorce. These differences may affect matters of compliance, service of process, residency or filing requirements, and division of military pensions. If you are an active duty military personnel or married to one, filing for divorce can be difficult and overwhelming without the help of an experienced attorney.
Below is an overview of military divorce laws affecting U.S. service men and women who are contemplating or getting a divorce.
Before any court can grant a divorce to military members or spouses, it must have "jurisdiction" or the authority to hear the case. For civilians, jurisdiction is generally the place where the person lives. However, for military personnel, jurisdiction may be the place where the person holds legal residence, even if the service member is stationed somewhere else. As discussed below, there are exceptions to this general requirement.
Service of Process
Many states will allow a military member or their spouse to file for divorce in the state the military member is stationed. It would not matter if neither spouse is a legal resident of the state. Generally speaking, military members and their spouses have three choices when it comes to which state to file for divorce:
- State where the spouse filing resides.
- State where the military member is stationed.
- State where the military member claims legal residency.
The grounds for divorce, property distribution, child custody and child support issues are governed by the laws of the state where the divorce petition is filed. Military members would be wise to contact a qualified divorce lawyer in the state they wish to file for divorce.
Service members also have legal timing protections from divorce proceedings that are different from civilians. Under the Service Members Civil Relief Act military members are protected from lawsuits including divorce proceedings so they can “devote their entire energy to the defense needs of the Nation.” A court can delay legal proceedings for the time that the service member is on active duty and for up to 60-days following active duty.
States will often reduce or eliminate the residency requirement for military divorces. Several states, for example, will allow military members or spouses to file for divorce in the state where the military member is stationed, despite whether the military member or spouse actual residents.
Other states allow military members or spouses to file for divorce in the state where either spouse resides or the state where the service member has legal residency. You should speak to our attorneys at the McConnell Family Law Group about your particular situation.
Military Pensions and Benefits
Like civilian retirement benefits, military pensions are subject to division between spouses in the event of divorce. Under the Uniformed Services Former Spouses' Protection Act (USFSPA), state courts may treat military retirement pay as either sole or community property depending on the state. While the USFSPA does not provide a formula for dividing the amount of retired pay, the amount is generally determined and awarded under the specific state laws.
The amount you are entitled to depend on how many years your spouse was in the service, the number of years you were married, and how many years of marriage overlap your spouse’s service.
The 20/20/20 rule for military divorce: If you have been married for at least 20 years, your spouse has been in the military for at least 20 years, and your 20 years of marriage overlap 20 years of your spouse’s service, then you are entitled to the same full benefits as your spouse, such as medical, commissary, base exchange, and theater.
Further, payment of the former spouse's share of military retirement is paid directly by the Defense Finance and Accounting Service (DFAS) to the former spouse if there was at least 10 years of marriage that overlapped with 10 years of military service (known as the ten-year rule).
Regardless of the length of marriage, however, a court may still authorize direct payment to a military spouse who has been married for less than 10 years as an offset, except payment would come from the retiring spouse rather than from the DFAS.
At The McConnell Family Law Group, we have over 50 years of combined experience handling military divorces for members of the military as well as those married to one. Two of our attorneys and one of our paralegals are each former members of military and have extensive experience handling military divorces. Our military divorce attorneys are knowledgeable in the rules regarding military divorce and we can confidently advocate your rights and best interests.
Our military divorce lawyers can help you navigate through the complexities of a military divorce from start to finish. Call now to schedule your consultation.
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