If you or your spouse is in the military and you’re considering divorce, you may be wondering what difference your military status makes. There are several areas where it can make a big difference compared to a divorce between civilians. Here are some examples:
Active duty can place a hold on the proceedings. The Servicemembers Civil Relief Act allows active-duty service members to ask for a “stay,” meaning a hold, on any civil action – including child custody proceedings. At the discretion of the court, this stay could also apply if the civil action is brought against the service member within 90 days of their release from active duty.
Both state and federal laws may apply. Even though state courts handle divorces, there are aspects of the divorce, such as the division of military benefits that are governed by federal law. However, state law still decides issues like child custody and support. One law central to military divorce is the Uniformed Services Former Spouses’ Protection Act, or USFSPA.
Jurisdiction can vary. For most people, it’s relatively easy to determine which state to get divorced in because you usually get divorced in the same state you live in. Military members, however, may maintain a legal residence in a different state from where they are currently stationed. You may be allowed to file in the most convenient of:
- The state where you claim legal residency
- The state where the filing spouse resides
- The state where the military member is stationed
Military pensions and benefits are divided by special rules. These can be applied in different ways, however, depending on the state. For example, the state may consider military retirement pay as the sole property of the service member or as part of the marital estate to be divided. It’s useful to have an attorney who is experienced with dividing military pay and benefits explain exactly how your pension can be valued and divided with your spouse. Other benefits are divisible, too, including thrift savings plans, survivor benefits plans, base privileges and even Tricare, depending on the circumstances and length of your marriage.
If either or both of you have military pay or benefits to divide, you should contact a lawyer who is familiar with military divorce.