Why Military Divorce Is Different
Military service creates unique issues in divorce because certain rules apply in military divorces that are different from civilian divorces. Among the differences are:
- Compliance with military rules and regulations
- Obtaining service upon an active-duty spouse
- Domicile or residence requirements for filing
Military divorces are governed by a combination of federal and state law. Military pension and certain emergency child-support orders are dictated by federal law; state laws dictate the handling of all other matters.
Protection from Divorce Proceedings (SCRA)
Military personnel have some legal protection from divorce proceedings that is not granted to the public at large. Under the Servicemembers Civil Relief Act (SCRA), military men and women are protected from lawsuits—including divorce proceedings—to enable them to “devote their entire energy to the defense needs of the Nation.” A court may delay legal proceedings for the time the service member is on active duty and for 60 days following active duty.
Process Service
A state court cannot hear a case unless it has authority—jurisdiction. If the spouse of a military member is the one seeking the divorce, the active-duty spouse must be personally served with a summons and petition for divorce for the state court to have jurisdiction over the military member.
If the active-duty spouse is overseas or deployed, you may request that military authority serve your spouse, but your spouse must consent to service. If your spouse will not consent, you may request that the court appoint an officer of the court to serve the papers (unless the spouse is serving on a ship or at a shore installation).
Residency and Filing Requirements
Many states allow a military member or spouse to file for divorce in the state where the military person is stationed, even if neither is a resident of that state, and often reduce or eliminate the residency requirement for military divorces. A military member or spouse may choose among three states in which to file:
- The state where the spouse resides
- The state where the military member is stationed
- The state where the military member claims legal residency (where the member plans to live after discharge or retirement)
Although either spouse may file in any of these three locations, the allowable grounds for divorce and property distribution are governed by the laws of the state where the divorce action is filed.
Grounds for Divorce
Some states are “no-fault” states, while others have “for-cause” grounds, and some combine the two. A no-fault ground means the only basis for divorce is that the marriage is irretrievably broken. Traditional for-cause grounds can include adultery, abandonment, habitual drunkenness, and mental cruelty.
Dividing the Property & USFSPA
Some states are equitable-property states, while others are community-property states. In equitable-property states, each spouse receives a distribution of “marital property” (property acquired during the marriage other than separate property) that is considered fair and equitable, but not necessarily equal. In community-property states, each spouse is entitled to one-half of all marital property. Separate property—property a spouse owned when entering the marriage, or acquired during the marriage by inheritance or gift—is retained by the owner in both systems.
The federal Uniformed Services Former Spouses’ Protection Act (USFSPA) governs the calculation and division of military pension benefits. It authorizes direct payment of a portion of a military retiree’s pay to the former spouse and extends some base privileges to certain former spouses. USFSPA allows state courts to treat disposable retired pay either as the service member’s property or as property of both spouses under the laws of the state court. USFSPA does not contain a formula; although up to 50% of a member’s retired pay may be awarded, state law determines the exact division.
Former Spouse’s Military Benefits
Under USFSPA, former spouses are eligible for full medical, commissary, and exchange privileges when all of the following apply (often called the “20/20/20 rule”):
- The spouses were married for at least 20 years
- The military member performed at least 20 years of service creditable for retired pay
- There was at least a 20-year overlap of the marriage and the military service
If the former spouse remarries, eligibility for these benefits is terminated; the benefits are revived if the subsequent marriage ends.
Child Support
All military members have a duty to provide support for their children, as well as their spouses, so their wages may be garnished to ensure proper support is paid. Child support may not exceed 60% of a military member’s pay and allowances.
The information on this page is general in nature and is not legal advice. Military divorce involves overlapping federal and state rules; how they apply depends on your circumstances. Please consult Pirnia Law Office about your specific situation.