What You Should Know About Military Divorces
Military divorces are no more complicated than civilian ones, but there are some rules and requirements that apply to service men and women and their spouses when they decide to end their marriage. These requirements affect service of process, compliance, division of military pensions, filing requirements, and residency. There are laws that affect United States service men and women who are considering divorce or already filing for divorce, and here is an overview of those military divorce laws.
Laws for Military Divorces
Military divorces are governed by both federal and state laws. State laws may control how alimony and spousal support are handled while federal laws may control where the couple goes to court and how any military pensions are divided. In most cases, active duty service members are protected from divorce proceedings under the Servicemembers Civil Rights Act (SCRA). This act states that service men and women cannot begin divorce proceedings or be sued while they are on active duty.
Service of Process
Some states allow military members or their spouses to begin divorce proceedings in the state where the service member is stationed. In this case, it does not matter if either party has legal residence in that state. Generally, service members and their spouses have three options when it comes to choosing a state in which to file for divorce:
- The state in which the service member is stationed
- The state in which the spouse lives
- The state in which the service member claims legal residency
The laws for the state that is chosen to file divorce take effect for the divorce process, child custody, child support, spousal support, and division of property. Since state law takes precedence, it is important for both parties to contact a knowledgeable divorce lawyer for the state in which they have filed or consult the military’s legal aid office. Additionally, under SCRA, service members have timing protection from divorce, meaning that the court can delay the divorce proceedings for up to 60 days.
Military Benefits and Pensions
Military benefits and pensions are subject to division between spouses in the event of a divorce. The Uniformed Services Former Spouses’ Protection Act (USFSPA) states that military retirement pay is to be treated as either sole property or community property depending on the state in which the divorce is filed. While the USFSPA helps determine how these benefits are treated, it does not provide a formula for how these benefits are divided, so that is determined by the state.