What are the Laws Pertaining to a Military Divorce

Between the long tours away from home and the new expectations of family life, 22 percent of active military members expect to be divorced this year.

While the facts of each relationship will differ from couple to couple, the laws pertaining to a military divorce can be just as complicated. Depending on where you live and what your status is, you could be in for a rollercoaster.

Trying to manage the paperwork of a divorce is hard enough when you live with someone. It’s even harder when you’re thousands of miles and several time zones away. While the strain of living apart and traveling so often has damaged your relationship, the combination of emotions and legal issues can be overwhelming.

The best thing to do is to get to know the details pertaining to military divorce. Here are the five most important issues to be aware of.

1. Know Which State to File in

Before you decide which state to file for your divorce in, get to know how the state handles military pensions. According to the USFSPA (Uniformed Services Former Spouses’ Protection Act), the state where the military member has legal residence divides the pension.

If you get divorced in a state other than where the active duty military member legally resides, the court might not be able to divide the pension. This can be beneficial to the military member but a detriment to a spouse who ends up as the primary caretaker for children.

Get to know all of the state’s laws when it comes to dealing with a military pension. The laws surrounding the issue are often complicated and could require you to speak to an attorney.

The best first step is to investigate the state’s typical ruling in a case like yours. Go to message boards and see how ex-partners have ended up following a divorce with conditions like yours.

2. The Servicemember Can Slow the Process

If someone is on active duty, it can be a little more difficult to get the divorce process moving.

When both spouses are civilians, one will have the other served with divorce papers and require a formal response within a period of time. The court will then take this response into consideration for the steps to follow.

If someone is on active military duty, normal court scheduling and deadlines may not apply due to the Servicemembers Civil Relief Act.

Active military staff can request that the divorce or any claims be delayed if they can’t appropriately respond. The same is due to servicemembers who are dealing with non-criminal court cases or civil disputes.

The usual length of time of each delay is 90 days with the option for more 90 day extensions. Military duties are seen to interfere with the active member’s ability to respond and so they’re given a break by judges.

Each “stay” is usually a written request submitted to the court in a formal and standard format.

3. The Military Could Provide a Lawyer

One of the perks of being in the military is that servicemembers often have access to legal assistance on their bases. While those attorneys can’t represent servicemembers in court, they can play a strong advisory role.

They are in place to help review legal documents, manage minor negotiations, and answer questions that the service member or their lawyer has.

The playing field is equalized because spouses can also get help from military assistance attorneys. During a military divorce, the spouse can visit a base to get help from any branch of the military.

While a civilian lawyer can achieve the best result, the initial advice that a military attorney can offer will be helpful. For low-income people, a non-military legal aid organization can often be found to help.

4. Child Support Is Always Complicated

Each state has a different law determining how much child support each spouse must provide. Usually, it’s calculated based on the other party’s base pay and includes money for housing, subsistence, and special conditions.

If the child has a special medical condition or is an ice skating prodigy, the spouse will be responsible for supporting these special conditions.

The court will set the amount owed to the parent who the child lives with and it can only be changed by the court. If the amount is unacceptable, another round of court visits will be in order.

Each branch of the armed service offers rules when it comes to child support. Legal assistance attorneys on each military base can help to calculate this amount. The military spouse’s commanding officer is tasked to help if there’s a child support issue.

The state’s unique laws surrounding military divorce will be sure to come into play again here.

Courts are typically well versed in understanding how pay changes based on deployments, transfers, and other issues. Usually, they will be sympathetic to a service member who is making little pay.

When the amount is determined, usually there will be a direct “garnishment” of wages by the state. This amount will be automatically deducted from the earnings of servicemembers.

Be sure you know all of the local custody laws before moving forward with your divorce.

5. Know Your Healthcare Options

After your divorce, the spouse who isn’t in the military can get healthcare through two potential channels.

If the couple has been married for 20 years while the servicemember was active, the non-military spouse could be eligible for TRICARE. This is a free insurance offering that sometimes will slow down the process of divorce for some couples.

Even if the non-military spouse has other insurance, TRICARE can be a supplementary insurance.

If you’ve been married for less than 20 years of active service, the non-military spouse can buy a healthcare extension that lasts three years. Starting at the date of divorce, this extension can be a much better healthcare option than what’s offered by the spouse’s employer.

A Military Divorce Requires Strategy

The complexity of divorcing while a servicemember is on active duty can cause many couples to delay their divorce.

While this is an unfortunate position to put couples in, it’s one of the many compromises that people make in the military. Although it’s complicated, a divorce still is possible.

If you see yourself headed down the road for a military divorce, be sure you ask these 10 questions first!