While dissolution of marriage is generally governed by state law, the federal government has enacted legislation that applies to divorces involving servicemen and servicewomen. Among other things, federal law governs when a military divorce proceeding may take place, under what circumstances it may be postponed, and how an active member of the military may be served. In addition, each state’s law provides unique residency requirements for military families.
A state court will not be able to hear a case unless it has authority. The authority of a court to hear a case is called jurisdiction. Therefore, if the spouse of a military member is the one seeking a divorce, the active duty spouse must be personally served with a summons and petition for divorce in order for a state court to have jurisdiction over the military member.
If the marriage lasted more than 10 years, the Defense Finance and Accounting Service, or DFAS, distributes the spouse’s share of the asset. If the marriage lasted fewer than 10 years, the military service spouse typically pays the non-military spouse directly.
If the active duty spouse is overseas or deployed, you may request that military authority serve your spouse, but your spouse must consent to service. If your spouse will not consent, you may request the court to appoint an officer of the court to serve the papers unless your spouse is serving on a ship or at a shore installation.
Military divorces call for counsel and representation by an experienced military family law attorney familiar with the following:
- Relocation issues: helping determine jurisdiction for cases involving military service members who have been relocated outside of their home state.
- Property division: military retirement benefits are divisible between the spouses; military authorities can divide the pension according to a time rule formula. The survivor benefit plan also needs to be addressed, including questions about who will be the beneficiary, who will pay for it, and alternatives including private insurance.
- Child custody and support issues: often difficult in civilian divorces, these disputes over custody and support can be even more problematic in a military divorce because in many cases, divorcing parties relocate as a result of their position in the military, requiring long-distance parenting plans.
- Alimony/spousal maintenance: commonly the spouse who is not in the military needs spousal support upon divorce because that person often has put a career on hold.
- Modifications: because of deployments and relocations, divorce decrees for military members often require modifications, including changes to parenting plans, child support, alimony/spousal support.
The Uniformed Services Former Spouses Protection Act ( “USFSPA”) is the federal law that authorizes state courts to divide a servicemember’s disposable retired pay in military divorce cases. The USFSPA does not provide for any particular division of the member’s military retirement; it does not, for example, require that the former spouse receive 50% of the member’s retired pay. Rather, it simply authorizes states to apply their own laws regarding division of property to military retirement in military divorce cases.
The USFSPA further provides that, once a state divorce court has ordered a division of the member’s military retired pay, the DFAS may provide direct payment to the former spouse of her share, in cases where the marriage overlapped with 10 years or more of the member’s military service. This is often referred to as the “10 year rule.” Note that even in cases where the 10 year rule is not met, the court can still award the former spouse a share of the member’s military retirement. However, in these cases, the member must pay the former spouse the share directly, as direct payment through DFAS will be unavailable.
In cases in which the Air Force personnel are on active duty or stationed overseas, there are specific military protocols that come into play with regard to divorce. The Servicemembers Civil Relief Act (SCRA) may apply to your situation, and experienced divorce lawyers are knowledgeable in all aspects of military divorce, including this relief act enacted by the federal government to assist those in the armed forces. The division of military pensions and the liabilities that have been taken on during the marriage may be affected by this act, and every aspect of your divorce as it related to the Federal codes must be understood by your attorney. Should you attempt a divorce with a lawyer that is not experienced with military divorce, you can create future problems for yourself and your family.
Military Divorces Differ From Other Divorces
There are a number of federal laws and protections that apply to military members and their spouses. The best military divorce attorneys are knowledgeable about the following Federal acts and how they apply to divorcing military members:
- Servicemembers Civil Relief Act (SCRA)
- The Soldiers and Sailors Civil Relief Act (SSCRA)
- Uniformed Services Former Spouses Protection Act (USFSPA)
Military pensions and residency matters are tricky and can be even more complicated for a military spouse than for military members. Another challenge for property division in a military divorce is determining whether re-enlistment bonuses are separate property or community property. While military divorce is more complicated than civilian divorce, an experienced attorney can help you navigate the process and achieve a timely and affordable resolution.
