Understanding the Military Divorce Process

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Although Family Law is state-specific in the United States, in divorce cases where either or both spouses are (or previously were) servicemembers, things are somewhat more complicated. In this article, we’ll address several of the most common issues and peculiarities associated with military divorces.

Most military divorce issues are governed by a particular state’s Code or Statutes, just as in civil divorces, yet federal laws govern several matters. The primary federal laws regulating military divorce are the Servicemembers Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act (USFSPA). They relate to servicemembers’ protection against the entry of default judgments, the division of retirement pay and benefits, and the specifics of how child support or alimony shall be paid.

Residency Requirements Exception

Almost all US states require that a person who wants to terminate a marriage within that particular state be a resident of the jurisdiction for a period established by law. The length of time generally varies from 60 to 180 days. However, a career in the armed forces often implies frequent movement, so establishing residency could take a while in some cases. Thus, there is an exception for military members.

For example, consider a military divorce in Texas. As a rule, local courts have jurisdiction over a divorce case if the spouses meet the residency requirements, i.e., either party is domiciled in Texas for at least six months before filing a petition. However, filing for divorce in the military implies that a member of a nation’s armed forces may file for divorce within the state if they are stationed there or claim legal residency.

Protection Against Default Divorce Judgment 

As mentioned above, the Servicemembers’ Civil Relief Act (SCRA), formerly known as the Soldiers’ and Sailors’ Civil Relief Act (SSCRA), can protect a service member from a default divorce. Let’s consider how it works, step by step.

To file for divorce, the spouse initiating the case (whether it is a service member or a military spouse) shall complete the initial divorce forms required according to the couple’s individual circumstances in a particular state and file them with the local court. At this stage, the process is the same as in civil divorce, though several additional forms (for example, Military Affidavit) may be required.

Then, the plaintiff must serve the second spouse with the copies of divorce papers, usually using the sheriff’s service or by certified mail, or other means allowed by the state’s civil procedure rules. 

These rules also determine when the defendant must respond to the papers by filing the relevant form with the court. And typically, if the defendant fails to file an answer within the deadline, the court may enter a default judgment against him or her. Default judgment denies the defendant the right to express their views and make arguments about property division, support, child custody, etc.

In a divorce in the army or any other military branch, at this stage, the  Servicemembers Civil Relief Act comes into play, ensuring that all service members served with divorce papers are protected from a default judgment.

Under the SCRA, regardless of where the defendant who is a service member is stationed, they should be duly informed about the start of a divorce action and have enough time to contact a lawyer and respond to the documents.

The Servicemembers Civil Relief Act states, “the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter.”

Any special circumstances and rules related to service of process, which may occur in a military divorce, are also outlined in the Army Regulation 27-40, Chapter 2.

Peculiarities of Property Distribution

When it comes to the distribution of property in a divorce, federal laws protect and guide both service members’ rights and their spouses’ entitlements, including commissary, exchange, and health care benefits.

In particular, the Uniformed Services Former Spouses’ Protection Act  (USFSPA) determines how the military pensions and other benefits shall be divided and a method of enforcing child support and spousal maintenance awarded in the court order.

Wherein, awarding a portion of the military retirement pay to the ex-spouse is not automatic. These benefits may be considered either sole or marital property, depending on the case, and enforced by rendering the final decree of divorce.

Moreover, to divide the property according to USFSPA, the couple must have been married to each other for at least ten years, while the service member performed military service, as required to be eligible for retirement. This condition is known as the 10/10 rule, and military spouses who comply with it can receive direct payments from the Defense Finance Accounting Service (DFAS).

Besides, under the USFSPA, half of the servicemember’s disposable retired may be disbursed to the military spouse by the Army, Air Force, Navy, etc.

If the spouses do not meet this 10/10 rule, a former wife or husband of a US military service member can still get a portion of the military retirement benefits. However, in such a case, property division occurs like in a regular civil divorce – at the court’s discretion and according to the state’s laws. For example, it matters whether the state follows an equitable distribution model of property distribution in divorce proceedings or belongs to community property states.

Child Support and Alimony Essentials

Financial matters of divorce, like spousal maintenance or child support, shall be governed by the Codes or Statutes of the state where divorce occurs. Typically, state laws treat alimony issues on a case-by-case basis but consider the list of relevant factors allowing the judge to determine whether an alimony request is reasonable and, if so – to decide its amount and duration.

In a divorce with children involved, for calculating child support, each state provides its Child Support Guidelines and tables, which help determine the required amount, based on parents’ incomes, number of minor kids, valid child custody arrangements, and so on.

Nevertheless, being regulated by state laws and civil courts, child support and alimony payments are handled with the help of the Defense Finance Accounting Service. DFAS enables divorced military members to either make a voluntary allotment or deduct an amount automatically from each paycheck.

Thus, when the judge signs a spousal support order based on the same factors and rules as in a civil divorce, Defense Finance Accounting Service shall get it and enforce the payment by allocating the decided amount to the recipient.

However, as the Servicemembers’ Civil Relief Act states, these payments shall not exceed 50% of the military member’s retired pay.

How Long Does a Military Divorce Take?

Although being regulated by multiple military divorce laws and rules, every dissolution case is unique, so the length of divorce is hard to predict. Like in a regular divorce, the spouses may either contest the case or reach an agreement concerning the essential terms of their separation, significantly reducing costs and time required to end the marriage.

The most crucial circumstance which can prolong the process is the military member’s location. For example, if an active-duty military member is overseas, especially in some hostile location, many security and bureaucratic challenges may interfere with the service process.

US consular officials usually cannot assist in overseas service of process, so this procedure shall be considered on a case by case basis, following both laws of the particular US state and the country where the defendant is located.

Although SCRA puts a divorce procedure on pause while deployed, if the service member wants to proceed with the divorce as quickly as possible, they can waive this temporary suspension. In an uncontested case, the service member can waive the Service of Process to speed up the divorce.

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