A military divorce is tough. Spouses can fight over property, money, and children from marriage. But, one step you can take to achieve the best outcome for you is to be aware of the rules.
In particular, if you are in the US military, there are going to be specific rules you have to follow when it comes to divorce. Let’s look at what you need to know about military divorce.
How To File for Divorce in the Military
When divorcing in the military, you need to consider these steps:
– Decide Where To File
First of all, it is essential to note that the residency requirement in many states does not apply to the military. In other words, you can file for divorce in any state you are stationed in. It does not necessarily have to be the state of which you are a legal resident.
Therefore, the active military member or their spouse has several choices when it comes to where they are going to file their divorce. This can be where the spouse resides, where they are stationed and where you are a legal resident. But, something you do have to note is that the grounds for divorce will depend on what state you are filing in.
Does It Matter Where You File for a Military Divorce?
Yes, you must carefully choose where you file for a military divorce because it can affect the result and what you receive. In particular, states will have their own rules regarding elements of divorce. This includes military pensions. So, if you have the choice between filing for a divorce in different states, you want to find out what their rules are.
Filing in one state might give you better benefits at the end of the divorce. This can stop your partner from receiving as much money if you do not want them to after you have split up. It is simple to do online research to find out the rules in each state, or you can consult a lawyer. They will be able to get you expert advice on the topic.
Can a Divorce Begin With Someone Who Is on Active Duty?
No, there is some protection in place to ensure that a military member on active duty does not have to deal with divorce proceedings. This would be stressful and may affect their job and how they perform. This would be the last thing anybody would want during active duty and when serving the country.
The Servicemembers Civil Relief Act, which is known as SCRA, is there to protect the military on active duty. They have the ability to apply for a temporary halt on proceedings, which is referred to as a ‘stay.’ This is going to prevent any civil action from happening while they are on active duty.
In addition, this legislation also means that civil action cannot start within 90 days after their active duty ends. This gives a person time to recover after serving their country. It is important to remember that divorce proceedings can be difficult and involve stress and sadness. So, military members are given time to adjust after active duty before dealing with divorce proceedings against them.
It is possible for the 90 days to be extended. This is something that a military member can petition for. A judge will make a decision on whether this stay can be extended. It will be up to them whether this is granted or denied, and you may have to put evidence forward to show why this stay should be extended. Often, there has to be a good reason for this, not simply because you want to delay the process. For example, this could happen if a military member has sustained an injury or struggles with mental health.
– Prepare the Paperworks
There is going to be some paperwork involved when you are filing for divorce. You should be ready to take on this process when you are ready. It is often recommended that you hire legal help if you believe the divorce process might be tricky or children are involved in the marriage.
Should You Have a Military Divorce Lawyer?
Yes, it is beneficial to hire a military divorce lawyer for the process. Since the petition can be different, as well as the whole process, it is best to hire a professional that knows what they are doing. In particular, a military divorce attorney is going to have experience and know what the army regulations for divorce are.
Going through a divorce can be a difficult time as it is. This is without trying to figure out the whole process. So, having an attorney on your side is going to help. They can take care of the legal side, and you can focus on rebuilding your life or putting your children first.
What’s more, a military divorce lawyer can advise you on what you are entitled to. Whether you are a military member or a spouse, you will have certain rights and assets you are entitled to have after the divorce. So, an attorney can alert you to things you may not have known about previously.
It is important to note that you are not required to have an attorney if you are filing for divorce. This will be your decision and whether you want to have one for the procedure.
Will the Military Give You a Divorce Lawyer?
No, if you need a divorce lawyer, this is something that you are going to have to find by yourself. The military does not issue you with your owner attorney for this process. But, there are professionals that can offer you advice before divorce proceedings.
Often, there can be some legal assistance available if you are in the military. These professionals can review legal documents and help answer your questions. There will be some instances where they can negotiate on your behalf. But, it is important to realize that these legal experts cannot represent you in court for a divorce.
Military legal assistance is also going to be available to the spouse. This is something that they ask for. Again, this professional is not going to be their representative in a court for a divorce. But, they are going to be able to offer advice that can be helpful in this case. This is a benefit that they are going to gain through their marriage.
A spouse can petition for alimony or spousal support from their servicemember partner during the divorce. But, the circumstances will dictate whether they have to pay this.
Often, it is the case that a servicemember will provide for their family. This can mean that the other spouse stays at home to look after the children or have a part-time or lower-paid job. Of course, this is not always the situation, but it is in these circumstances that a spouse might file for alimony. If the spouse has a good career and is financially sufficient, there will be no need for spousal support after the divorce.
For the most part, it will be down to the laws in the state that tell spouses what they have to do for alimony. Most of the time, it requires you to have evidence that you need financial support from your spouse to maintain the same standard of living. The Uniformed Services Former Spouses Protection Act makes sure that local laws are going to apply to servicemembers and their families since they are moving around a lot.
Can a Service Member Avoid Paying Spousal Support?
The answer to this question is no. If you are ordered to pay spousal support to your partner after divorce, this is something that you must comply with. A judge has stated that you must meet this responsibility, or there will be consequences for your non-compliance.
Military members may think that their responsibility ceases to exist since they are traveling a lot and are out of the state. But, this is not true. You can be in a lot of trouble, and it can mean that you have to pay arrearages and penalties for not meeting your legal obligations.
For instance, in this case, a judge can order an involuntary allotment. This is when the wages of the service member will be reduced to allow for spousal support. It is also possible for a judge to order garnishment, which means that the military will pay the spouse to ensure that the obligation is met. This can be up to 50 percent of their disposable earnings.
– Child Support
Child support is something that can apply to a military divorce, as well as a civilian divorce. It is paid from one spouse to the other so that the children can have their needs met, whether this is for everyday expenses, medical attention, or education. Indeed, this can involve a service member paying child support to their spouse after a divorce.
Military members need to meet their obligations when it comes to child support. If they do not, they can face penalties. This includes garnishment, which the military will enforce. The amount of child support they will have to pay will depend on the circumstances of the case, as well as the state where the divorce takes place.
Of course, it is possible for a court to enforce a child support order. But, this is something that can be done by the military in an informal way too. The choice will be up to the spouses and what will work for their situation. For instance, if you are on good terms, it might be possible for you to come to an arrangement that will benefit the children.
Can a Service Member Be the Children’s Primary Custodian?
Yes, a service member can be the primary custodian that cares for the children after the divorce. Often, it is thought that a military member will not be able to do this. Namely, there is a myth that they are not going to be around or able to provide for the children’s needs on a day-to-day basis. However, this is simply not true.
The primary custodian of the children after a divorce is always going to be the person that is able to meet their needs and provide everything they require. Thus, if this is something that a service member can do, they will be given the primary custodian status. The most important thing is that there is a custody plan in place that puts the children first.
In particular, service members will have to account for what will happen if they are deployed. This will include having a custody plan that details what will happen with the children. This may be different depending on the age of the children.
– What Happens to a Military Pension in an Army Divorce?
A military pension is going to be approached in a similar way to normal retirement pensions. In other words, they can be divided between the spouses when they are going through a divorce. The details about this are held in the Uniformed Services Former Spouses’ Protection Act, also known as USFSPA. This legislation states that it is going to be down to the state and its rules on whether a military pension will come under community property or sole property of the military member.
Therefore, it will depend on where the divorce is filed to know what happens to a military pension. There is no specific formula in the legislation; this is going to be down to the judge in that state to decide what happens to the money.
Something to be aware of is the 10/10 rule. This means that the Defense Finance and Accounting Service will pay the spouse if their marriage was at least 10 years in length and was at the same time as 10 years of service in the military. This does not mean that the spouse will not receive some military pension if they have been married less than 10 years. It means that the money will be given by the military spouse and not the Defense Finance and Accounting Service.
Note that VA disability compensation is not going to be included in a divorce proceeding. Thus, a spouse will not be entitled to this as part of the military pension.
– What Other Ways Can a Non-Military Spouse Benefit from an Army Divorce?
There are several other things that may be split between a spouse in a military divorce. Indeed, this may be viewed as the non-military spouse benefitting from the situation. But, there are going to be qualifications to enjoy these privileges.
For instance, they may enjoy full medical cover after a divorce, which means they do not have to pay out if they are sick or suffer from injury. There can also be exchange privileges and even commissary that can be enjoyed after divorce from their military spouse.
However, not everybody will be entitled to these benefits simply because they were married to someone in the military. There are specific qualifications that you have to meet first. For instance, the couple should be married for 20 years or longer. The military member will also have 20 years of service under their belt. At least 15 of those years must have involved the couple being married.
While nobody wants to divorce their partners, this can happen when things go wrong. The most important part is that you know the rules regarding divorce, which is particularly true if you or your partner are in the military. This can ensure that the right solution is reached. Let’s summarize what we know from this guide:
- You can file where the spouse lives, where a military member is stationed and where you are a legal resident.
- If you are hiring an attorney, it is best to choose one with experience in the military and working with military service members in the past.
- A temporary halt or stay is put on proceedings, which means that no divorce can go through on active duty or 90 days after it ends.
- The 10/10 rule means that the Defense Finance and Accounting Service will pay the spouse if their marriage was at least 10 years and at the same time as 10 years of service.
- A military member’s spouse might be able to enjoy the medical cover and other privileges after divorce if they have been married for 20 years or more and 15 of those years the partner served in the military.
Getting a divorce in the military does not have to be complicated. The first step is learning the rules and the best way to start separation from your spouse. The army divorce regulations help make this situation clearer, and attorneys are always there to help.