Divorce for Military Members

by Heather Frances J.D. Google
Divorce may be more difficult for military spouses.

Divorce may be more difficult for military spouses.

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Just like civilians, military members must get divorced by state courts rather than military courts. However, unique aspects of military life may complicate divorces involving a military spouse. Such couples can typically divorce in their state of residence or in the state where the military member is stationed.

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Servicemembers Civil Relief Act

When a military member is part of a divorce action, he receives special procedural protections to ensure he has the chance to respond to the divorce. These protections are found in the Servicemembers Civil Relief Act, a federal law. SCRA allows a military member to receive an automatic stay, or postponement, of divorce proceedings if he is unable to respond to the divorce papers or otherwise prepare for the lawsuit because of military duty. The initial automatic stay is for 90 days, but the military member can ask the judge to grant a longer stay. For example, if the military member is deployed overseas when his spouse files for divorce, he could have the divorce action postponed until he gets back.

Property Division

Like civilian couples, military couples can agree about how they want to split their property, or they can have the court decide for them. Courts divide property according to the laws of the state where the divorce was filed, which may include an equal division in community property states or a fair and equitable -- but not necessarily equal -- division in equitable distribution states. Under federal law, the military member’s retirement benefits can be considered marital property for the court to divide. Even if the military member has not yet fully earned his retirement, it can be split in the divorce decree, to be paid in the future when he receives it.

Child Custody

Child custody is also decided according to state law, but the transient nature of military life can complicate the couple’s parenting plans. For example, a parent may be unable to adhere to the normal visitation schedule when he is deployed or stationed overseas, and a parenting schedule may need to change every time the military parent is moved to a different state. Thus, military couples can structure their parenting plan to address what happens when the military parent's situation changes. Also, military parents are often required by military regulations to have a family care plan that identifies caregivers for their children in case of military emergency. Such plans name someone to care for the child if, for example, the military parent must respond to a national emergency.

Child Support

Like custody, child support is set according to the laws of the state where the divorce occurs. Generally, state plans create formulas that incorporate at least one parent’s income -- and usually both parents' income. These formulas are applied according to the state’s child support guidelines, which courts can often deviate from depending on the circumstances. Additionally, the federal government restricts the amount courts may garnish from a military spouse's paycheck to 60 percent of his military pay for child support purposes. The limit is 50 percent if the military member has other dependents.