How military divorces are different

A divorce where at least one spouse is in the military is called a ““.  State laws govern regular divorces. Military divorces are different as both state and the federal law apply to them.
 
The main federal law which addresses military-divorces is the “Servicemembers Civil Relief Act.” Earlier the act was also known as Soldiers’ and Sailors’ Civil Relief Act. Here’s a link to the original law 50 U.S.C. §§ 3901—4043). The purpose of the law is to protect soldiers from court proceedings, such as divorce and lawsuit.
 
The rest of the article covers differences between a regular vs. military divorce.
 

DIVORCE PROCESS DIFFERENCES

 Here are the differences in the military-divorce process itself which is around how the divorce is filed, the paperwork, and the hearings.  The divorce process is not about the final settlement such as how the bank balance is split, or who gets the child custody. 

Delay proceedings

 
Members preoccupied with military service can seek delays to the divorce cases by up to 6 months. Usually, the judge may award a 3-month stay and then may grant another 3-month stay. Servicemembers Civil Relief Act grants this privilege to service members.
 
In case you are in the military, you may wonder if delaying can be helpful. The legal community generally says “no” i.e. it’s not helpful. Delaying usually provides more time for your spouse. Your spouse may use that time to build a stronger case against you.
 

Serving a spouse Overseas

 
Serving a deployed-service member can be difficult which may delay the divorce.  Divorce process usually involves delivering or “serving” documents to your spouse. Legal couriers can provide excellent coverage within the USA. But even legal couriers may be unable to serve a deployed-service member. For example, your spouse may be on a restricted military base or a naval ship.  In such cases, the divorce law requires to delay the divorce. 
 
The spirit of the law is to level the playing field for military personnel. Divorce cases proceed on with “default action” if a spouse is unresponsive. Default actions are generally unfavorable to the unresponsive spouse. And so by delaying the case, the law allows military personnel to take part in the case.
 
In case legal couriers cannot serve your spouse then your options are:
  1. The court can appoint military personnel to serve the documents to your spouse.
  2. Request the Hague Convention’s central authority to serve your spouse
 

DIVORCE SETTLEMENT DIFFERENCES

Division of Property

 
The division of assets is “fair” similar to a regular divorce. But state courts do not have the legal authority to divide military disability pay.
 

Child Custody

 
Child custody for military divorces is the same as regular divorces. A couple must prepare a parenting plan. The parenting plan covers all aspects of parenting. It covers where the children will be staying, and who will make their life decisions. Military divorces do have these differences:
 

Absences due to duty are not penalized 

 
Usually, courts penalize those parents who have long absences from their children’s lives.  But courts are forgiving to military parents having absences due to military duty.
 
Another difference is that military parents can recover child custody after absences. Suppose a military parent serving in the military has to give up child custody due to a deployment. Later when the parent returns, they can get child custody back.
 

Parenting over Deployments 

 
The parenting plan for a military divorce addresses parenting over deployments. This section addresses details of who will take care of the children in case the parent get deployed. Military-parents usually seek parenting help from a new spouse, or grandparents.
 
Coverage if both parents are deployed
The parenting plan must include a “Family Care Plan” if both spouses are in the military. The Family Care Plan covers the situation when both parents are deployed at the same time. The Family Care Plan also applies if the child has a single caretaker (e.g. single parent) who is deployed.
 
A parent is “single” if he/she has custody of a child or shares custody with an “ex” i.e. not currently married.  The child must be under 19 years.
 
Service members must inform the military about having a documented Family Care Plan.  Active service members have 60 days to inform from the filing date. While reserve members have 90 days to inform.
 

Child support

 
The child support is set by the Washington court.  The total child support amount is set at 60 percent. If the service member remarries and has a new family to support then the child support is 50 percent.

 

Military Benefits 

 
In case both spouses are in the military, then their benefits will continue after the divorce. The benefits are not dependent on their marriage. 
 
Suppose only one spouse is in the military. Then the non-military-spouse will not receive most of these benefits after the divorce.  The US Federal law has exceptions e.g. retirement pay, and continuing health benefits.
 

 

Healthcare

 
Healthcare benefits depend on the duration of the marriage. If the marriage lasted
 
  • Under 20 years:  the ex-spouse loses access to health benefits
 
  • 20 years or more: the ex-spouse retains access.  The ex-spouse loses benefits upon remarriage or taking health insurance via an employer.
 
Suppose the military member is a retiree from the military. Then the healthcare benefits continue for life for the spouse.

Commissary and Post-Exchange

 
Commissaries and post-exchanges are grocery stores for “military families”. In case only one of the spouses is in the military, then does the other spouse keep access to this benefit? The answer depends on the duration of the marriage. If the marriage lasted:
 
  • Under 20 years: the ex-spouse loses access to commissaries and post-exchange
  • 20 years or longer: the ex-spouse retains access.  The ex-spouse loses benefits on re-marriage.  But if the spouse divorces again, then he/she can get the benefits back.
 

General Advice

 
Hire an experienced military divorce lawyer.  A lawyer can help you with the complexities, and get you a more favorable final agreement. 

Related Posts

How do I tell if a client has already E-filed

View Client Connections

How to get connected with a client who already has an account on LegalAtoms