5 Ways Military Divorce is Different From Civilian Divorce

Marriage can be hard. In many ways, a marriage in which one or both spouses is in the military can be even harder, with the deployments and other challenges military families face. It is no surprise that military divorce rates are slightly higher than those in the civilian population (though not as high as many people imagine).

Whether you are a servicemember or a spouse of someone in the military, if you are facing divorce, there are some things you should know about military divorce. While divorce is governed by state law, there are some federal laws in place that will affect your divorce process.

That makes sense: servicemembers, especially those who are deployed, may not have the ability to easily file or respond to divorce papers or appear at a scheduled court date. If special laws did not apply to them, they would effectively be punished in family court for serving their country. Here are five things you need to know about military divorce, and how it differs from civilian divorce.

1. You May Have a Choice of Where to File for Divorce — and it Might Matter to Your Finances.

If you want to file for divorce, you need to do so in a state that has jurisdiction (authority) over the people in the case, which typically means a state where the servicemember lives or one or both spouses has a legal residence. In most states, you can claim legal residence if you have lived there for six months or more. Often, in a military divorce, spouses have residences in two separate states.

If you and your spouse have residences in different states, you may find it more convenient to file for divorce in your state. But if you are the spouse of the servicemember, you might want to reconsider. The Uniformed Services Former Spouses’ Protection Act (USFPA) states that the servicemember’s state of legal residence always has the authority to divide the military pension. Another state might not. In addition, other states may have their own laws that could impact how the pension is divided.

Division of pensions is always complicated, and military pensions add an extra layer of complexity. If you or your spouse have a military pension, it is very important that you contact an attorney before filing for divorce so that you file in the state that has rules that are favorable to you.

2. Your Divorce Could Take Longer.

The Servicemembers Civil Relief Act (SCRA) applies to divorces in which at least one spouse is in the military, as well as to certain other types of cases. The purpose of the SCRA is to protect servicemembers abroad from the distraction of having to deal with civil litigation (like divorce) at home so they can focus on their military missions. The SCRA allows for filing extensions and prevents courts from making final rulings in legal matters affecting servicemembers until they can be present.

That’s good news for you if you’re the spouse in the military, but perhaps less so if you’re the stateside spouse who wants your divorce proceeding to, well, proceed. It can also be more difficult for the non-military spouse to serve a deployed military spouse with divorce papers, as it must be done in person.

3. Child Custody Issues Will Be More Complicated.

Resolving disputes about child custody in a divorce is rarely easy, but it is especially complicated in a military divorce, when one parent may be deployed or have duties that are not always compatible with the care of a child.

In the past, it was much more difficult for active duty servicemembers to be awarded primary custody of a minor child. Today, state courts are often more inclined to focus on the overall best interests of the child rather than automatically assuming a military parent is not in a position to care for their child. That said, the upheaval that comes with a parent’s deployment can be very disruptive for a child, so getting physical custody can still be challenging for a parent in the military. Remember, however, that the SCRA can allow a military parent to delay custody proceedings during deployment.

Another custody-related detail military families must be aware of is the requirement of the creation of a family care plan, which must be updated annually and which must not conflict with any court orders such as a child custody order.

4. There is a Cap on Income Withholding of Support Payments

Just like civilians, military servicemembers are required to support their children and can be required to pay alimony. However, paycheck deductions for child support and alimony cannot exceed 50-65% of the servicemember’s disposable income. If the court-ordered support payment is not greater than the maximum percentage allowed for income withholding, the entire support payment can be withheld or garnished from the servicemember’s pay.

5. 20 is an Important Number in Military Divorce

The length of a civilian marriage can affect the financial outcome, in that spousal support in many states depends in part on the length of the marriage. But the length of a military marriage, combined with the length of military service and the overlap between the two, can be even more relevant.

If a military couple has been married for 20 years, and the service member has been in the military for at least 20 years, and the marriage and creditable military service overlap by at least 20 years, a divorcing spouse is entitled to certain benefits. Those include medical benefits (TRICARE) and commissary privileges for the rest of their life — so long as they do not remarry.

Military divorce is a complex interplay of state and federal laws, and it is usually best to work with a military divorce attorney who routinely handles these cases and is familiar with the differences between civilian and military divorce. If you are in the military or are married to a servicemember and expect to divorce, we invite you to contact Brinkley Law Firm, LLC to schedule a consultation and learn how best to protect your interests.