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Military divorce couples file for divorce using the same process that civilians use; however, when military couples divorce there are factors that have to be considered separate from routine divorce situations. While there are many similarities among a military divorce and divorces involving civilians, such as legally dissolving the marriage and making determinations as to custody, child support and property distribution, there are significant differences regarding special rules that apply to jurisdiction, as well as qualifying for military benefits for the non-military spouse.
There are certain residency requirements in military divorces, such as requirements that the parties reside in the state for a period of time before filing. If military families have lived in more than one place, that can be a determination as to which state has the most favorable divorce laws. Courts may waive certain residency requirements if families have moved around due to military service.
With regard to military pensions, the service member must either consent to jurisdiction, be a legal resident of the state where the parties filed for divorce, or must be living in the state where they file for reasons other than because they were sent there by the military, in order for the court to have jurisdiction over a military pension.
The Servicemembers Civil Relief Act protects military spouses from having to respond to a complaint for divorce while serving an active duty. A service member or someone who is within 90 days of returning from being deployed can request a stay of the proceedings that last as long as 90 days and they are not able to respond to court proceedings due to the demands of their service. The service member’s commander must confirm that they do not have the ability to take leave to appear in court.
The court also has discretion to grant extensions to the stay for as long as the military service member is prevented from participating in certain proceedings in the state. Essentially, the divorce cannot continue until the stay ends.
Health services can also be available to the non-military spouse following a military divorce, if they meet the 20/20/20 rule, which means that the military spouse served at least 20 years and the parties were married for 20 years that overlap with at least 20 years of military service.
Child support is also calculated as in a regular civilian divorce, but in a military divorce it is based on the service members total entitlements, including base pay, housing allowance, subsistence allowance, and any other specialties. There are additional special rules in place to permit child support to be directly garnished from the service members and sent to the nonmilitary spouse.
For determinations of child custody and child support, as well as spousal support, additional documentation outside of what would normally be required in the divorce is necessary as routine employment documents, such as income statements and tax returns, will not accurately reflect the military spouse’s full compensation. During the divorce process a military spouse must provide their Leave and Earning Statement, which sets forth additional information, such as their housing allowance, cost of living allowance and allowances for extra duties.
What is the 10 year rule for military divorce?
In accordance with the American Bar Association, pursuant to the Uniformed Services Former Spouses Protection Act, USFSPA, the 10/10 rule governs the method of payment. At least 10 years of marriage overlapping at least 10 years of military service is needed for direct payment from the retired pay sensor, usually the Defense Finance and Accounting Service, DFAS.
Military divorce lawyer
It is necessary to obtain appropriate legal advice to ensure that you are navigating the military divorce correctly because of the differences concerning jurisdiction as well as the rules governing military benefits. You want to be sure that you are working with somebody who understands and has experience with handling military divorces. Here at DeTorres and DeGeorge, we provide compassionate representation to our clients. If you are contemplating a military divorce, contact us today to schedule a consultation. We can answer your military divorce questions and prepare you for the military divorce process. Contact us today.
