Divorces where either one or both parties are in active military service are substantially the same as a regular, civilian divorce. However, there are some additional factors which an attorney and their client should consider.
Court jurisdiction is normally where a person lives. However, in a military divorce a spouse may file either where the military member is stationed, even if the member is not a legal resident of that state, or in the state where the military member claims legal residency. The jurisdiction hearing the case will effect property distribution, child custody, and child support issues.
It is worth noting that military members have unique protections under the Service Members Civil Relief Act (“SCRA”). The SCRA protects service members from lawsuits, including divorce proceedings, so they can “devote their entire energy to the defense needs of the Nation.” The SCRA allows active duty service members to request a “stay” of divorce proceedings if their duties prevent them from responding to the court action. The initial stay is for at least 90 days. The court can grant extensions after 90 days, but one can’t postpone the divorce forever. The purpose of the SCRA is to delay court action as long as the military member’s duties interfere with their participation in the divorce process. This stay is not automatic and must be requested in writing.
Military Pensions and Benefits
Like civilian retirement benefits, military pensions are subject to division between spouses in the event of divorce. The Uniformed Services Former Spouses’ Protection Act (“USFSPA”) and state law determine how such assets are divided. Payment of the former spouse’s share of military retirement is made directly by the Defense Finance and Accounting Service (“DFAS”) to the former spouse if there was at least 10 years of marriage that overlapped with military service. However, regardless of the length of marriage, a court may still divide military retirement between the spouses. The only difference is that payment may come directly from the retiring spouse rather than from DFAS.
A Thrift Savings Plan (“TSP”) is treated by the court like a traditional 401K. However, in military divorces there are specific requirements and verbiage that must be in the court order that differ from a civilian retirement plan division orders. In addition, a Survivor Benefit Plan (“SBP”) is a benefit that must be specifically addressed in the divorce decree because the SBP terminates upon divorce without special language in the divorce decree to the contrary.
In addition to pension benefits, spouses of former military members are also eligible for full medical, commissary, and exchange privileges when (1) the couple was married for 20 years or more, and (2) the service member has performed at least 20 years of creditable service toward retirement pay, and (3) there was at least a 20-year overlap of marriage and military service. Be aware that these benefits will end if you remarry.
A military divorce involves many complex legal issues that civilians do not have to contend with. Let Sansone Howell help guide you through this process. Call us today at (405) 455-1032 for your free initial consultation.