If you are contemplating divorce and either your or your spouse are in the military, you should be aware of the special considerations for a military divorce. Military divorce comes with its own special rules regarding the division of military pensions, residency requirements for filing, legal protections for the military member and emergency court orders pertaining to child support. The courts can delay divorce proceedings for the time the service member is on active duty plus up to 60 days following their return. In short, military members are afforded legal protections from divorce proceedings that civilians are not.
Jurisdiction
The active duty spouse must be served with a petition for divorce in order for a state court to exercise jurisdiction over the military member; if the active duty member is currently serving overseas, military authorities may be required to serve the divorce papers. The problem with this system, is that the active duty spouse may refuse to accept service; at this point you can request that the court serve him or her, but few courts will send a representative overseas or even a long distance to serve a military member. The bottom line is that if your spouse is deployed or serving overseas you may have no option other than to wait until their return to begin divorce proceedings.
Filing Requirements
While civilians must file a divorce petition in the state where they reside, military members can file either where the spouse resides, in the state where the military member is stationed, or in the state where the military member chooses to claim legal residency. Property distribution, child custody and child support will be governed by the laws of the state where the divorce petition is filed, so the state where you file can be a very important decision.
Property Division
Generally speaking, property division is governed by the laws of the state in which the divorce petition was filed, however, military pension is an entirely different matter and is governed by the Uniformed Services Former Spousal Protection Act (USFSPA), which extends certain base privileges to former spouses and will direct that a portion of a military retiree's pay go to the former spouse. However, being married to a military member is no guarantee that you will receive a portion of his or her retirement, and the USFSPA allows the state courts to treat disposable retired pay either as sole property of the military member or as joint property. While up to 50% of the military member's retired pay may be awarded, most states have a formula for calculating proper division of military pay. As an example, if you were married to a military member for 10 years, the courts may decide you are entitled to 1/3 of the military retirement, however this can vary widely.
Military Benefits of Former Spouse
If your marriage lasted at least 20 years, your military spouse performed at least 20 years of service for retiree pay, and there was a 20 year overlap of the marriage and the military services, you may be eligible for full medical and commissary benefits. However, if you remarry, your benefits are terminated...unless your subsequent marriage ends in divorce, in which case your benefits are reinstated.
Child Support
The wage's of a military member may be garnished in order to provide child support for their children, however this support may not exceed 60% of the military member's pay and allowances. If your military spouse fails to provide the prescribed child support payments, you can go to his commanding officer as extra protection in receiving your support.
Legal Support
It is absolutely crucial that you have an attorney who is experienced in military divorce during this difficult time. Military retirement benefits are often a source of dispute, and your attorney needs to understand military retired pay and the special rules surrounding it.
