Divorce laws vary from state to state, and are generally controlled by the statutes of the State where the parties last cohabitated as husband and wife. But, what if you are a member of the U.S. Armed Forces? Do the same rules apply?
When it comes to military divorces, special rules and requirements apply to U.S. service members and their spouses. Divorce in that situation can be controlled by both State and Federal statutes.
When serving active duty, the service member is generally protected from divorce proceedings under the Servicemembers Civil Relief Act (SCRA) that states that a service member cannot either be sued for or begin divorce proceedings while they are on active duty or for 60 days following active duty (at the court’s discretion). In addition under SCRA, a court can delay divorce proceedings during the time the service member is on active duty or for up to 60 days afterward.
Three Options of Where to File for Military Divorce
Prior to a divorce being granted, the court in which the case is filed must have both personal jurisdiction over the parties and subject matter jurisdiction over the specific area of the law involved (e.g., military courts do not hear divorce cases, and state courts do not hear military cases). “Jurisdiction” over the parties generally (or their last marital residence) will determine which court has the authority to make decisions regarding the divorce. For civilians, it is most often where they live; their state of legal residence. With military divorce, because a member of the U.S. Armed Forces can designate residency in state where they do not reside full-time while in active duty, determinations of “jurisdiction” often are controlled by where the spouse filing for the divorce resides, particularly if that is where the parties last cohabitated together as husband and wife. In some instances, where the real estate the parties own or where the children are being raised plays a significant role as well in deciding which court has proper “jurisdiction” over the case. Hence it is recommended to obtain a family law/divorce attorney to properly guide you on which state is proper or best to file in for the divorce.
For military members and spouses, divorce can be filed by one of three choices:
1. In the state where the military member is a legal resident;
2. In the place where legal residence of the spouse is established, even if that service member is stationed elsewhere;
3. In the state where the military member is currently stationed, whether or not they are a legal resident of that state.
Division of Military Pensions and Benefits
In the event of divorce, a military pension is subject to division between spouses and under the federal statute known as the Uniformed Services Former Spouses’ Protection Act (USFSPA). Depending on the state, it can be treated as sole or community property, and divided between or awarded to a spouse based on that state’s specific laws governing divorce. The USFSPA guides the court on how best to address issues like military pension, child support and spousal support.
Military spouses are also subject to the “ten year rule,” which allows a former spouse to receive direct deposit payment of his or her portion of the former service member spouse’s military retirement from the Defense Finance and Accounting Service (DFAS) so long as there was ten years of marriage that overlapped with ten years of military service.
As an example, if a couple were married for 15 years, with the military member serving for 8 of those years, the spouse would not be eligible for direct payment through DFAS, and s/he would then have to receive those amounts on a monthly basis from the military member spouse until paid in full. However, if a couple were married for 15 years and the military member served for 12 of those years, all payments would be by direct deposit from DFAS to the former spouse would be made by DFAS. A spouse cannot collect his/her portion of the retirement pay until such time as the retiree applies for it; therefore, some people put a specific time frame as to when to begin claiming/receiving benefits into their divorce settlement.
The maximum amount a spouse can receive of the military retirement income is 50%. If the payment also includes child support, the maximum combined amount deducted from the disposable retirement pay cannot exceed 65%. Both the military member and the spouse should be aware of the full value of the pension when settling a divorce.
Spouses of former military service members may also receive full medical, commissary and exchange privileges (full base privileges) in addition to pension benefits (as long as they don’t remarry) under the following conditions, sometimes called the 20/20/20 rule:
• The marriage lasted 20 years or more;
• The service member has 20 or more years of creditable service toward retirement pay; and
• There was a 20-year overlap of marriage and military service.
In addition, in cases of divorce, the ex-spouse of a military member is no longer a beneficiary of the Survivor Benefit Plan, as they were while married. This benefit must be addressed in the divorce settlement.
Determination of Alimony and Child Support
The military has specific rules for determining spousal and child support and may also require the payor-spouse to maintain life insurance covering these payments for a specified period. A divorced spouse will no longer qualify to take advantage of on-post military housing and will need to find housing elsewhere.
The court may enforce these obligations by:
• Voluntary or Involuntary Allotment
Contact a Family Law Attorney Familiar with Military Divorces
Since there are special rules and regulations regarding a military divorce, it is best to seek legal advice before taking action. At the Law Office of Patricia E. Tichenor, P.L.L.C., attorneys Patricia Tichenor or Camellia Safi would be glad to provide representation in seeking your divorce or assist you with issues of child or spousal support. Located near INOVA Loudoun Hospital in Leesburg (Lansdowne), Virginia, we serve clients throughout Northern Virginia. Please contact us today.