While most divorces involving members of the military follow the general path of civilian divorces, there are some special considerations to keep in mind.
Because military service entitles service members and their spouses to various benefits, it can be somewhat tricky to protect your military benefits when divorcing your spouse. In the article below, we’ll discuss some of the special considerations for members of the U.S. military when it comes to getting divorced.
Where Can Military Members File For Divorce?
In most divorces, you must file in the state where you or your spouse reside. So if you live in Michigan, you need to file for divorce in Michigan, assuming that you have lived in the state for 6 months immediately prior to your filing. However, this residency requirement can be different for members of the military and their spouses.
Courts have been known to waive residency requirements in military divorces, especially for those that have moved and lived in various locations due to their military service. As you may know, each state has different divorce laws, so if you have lived in a state that follows equitable distribution, like Michigan, or community property state like California, you can choose to file in either state, depending on which rules are more favorable.
Special Rules Regarding Military Pensions & Divorce
In deciding where to file for divorce when in the military, there are also some considerations to make regarding the military pension. In order for the court to have jurisdiction over a military pension, the service member must either consent to the jurisdiction or one of the following must be true:
- The service member must be a legal resident of the state where you file for divorce
- The service member must be living in the state where you file for reasons other than because they were sent their by the military
Remember, regardless of where you married, the laws of the state where you file for divorce govern the issues that arise in your divorce.
Special Rules For Property Division In Military Divorces
State laws govern property division in a military divorce, just as they do in other divorces. In community property states, the court divides marital property equally. This means each spouse gets 50% of shared assets and each spouse is held responsible for 50% of debt. In equitable distribution states such as Michigan on the other hand, the court instead divides property fairly but not always equally.
While these rules don’t change in a military divorce, there are some special issues that can come up related to the unique benefits service members receive.
For example, the Defense Finance and Accounting Service (DFAS) provides direct payments of military retirement pay to eligible service members. Spouses can also become entitled to receive direct payments from a military pension through DFAS if they meet what is called the 10/10 Rule. The military spouse must complete 20 years of service and they must be married for at least 10 years that overlapped with 10 years of military service.
If a non-serving spouse does not qualify for a direct payment from DFAS, they can only receive their portion of a military retired pay (if any) by having the military spouse pay the non-serving spouse directly.
A non-serving spouse can also be entitled to a portion of funds in a Thrift Savings Plan during divorce, which is treated similarly to a civilian 401(k) plans.
Finally, other issues that may need to be addressed that are unique to military members include whether the non-serving spouse will continue to be a beneficiary of the Survivor Benefits Plan, whether the non-serving spouse will retain base privileges, and how the military spouse will allocate their education allowance, which can be transferred to spouses, former spouses and children.
Can You File For Divorce While Your Spouse Is On Active Duty?
You may sometimes be able to file for divorce while your spouse is on active duty. However, the Servicemembers Civil Relief Act protects a military spouse from being blindsided with legal proceedings they must respond to while serving.
Under this Act, an active-duty service member or one who is within 90 days of return from being deployed can request a stay that lasts for as long as 90 days when they are not able to respond to court proceedings due to the demands of their service. The service member’s commander must confirm that they do not have the ability to take leave to appear in court.
The court can also grant extensions to the stay for as long as the military service member is prevented from participating in divorce proceedings due to their obligations. A stay pauses court proceedings so the divorce cannot continue until it is lifted.
How Is Child Support Handled In A Military Divorce?
Children are entitled to support from both parents and the rules of the state where the divorce takes place can control the amount of child support that one parent must pay to the other.
When child support is determined, it is based on the service member’s total entitlements including their base pay, housing allowance, subsistence allowance and other special pays. Not all courts understand how service members are compensated though. And, there are special rules in order for child support to be directly garnished from a service member’s check and sent to a spouse. These can be explained by your military divorce attorney.