Federal Laws on Divorce While on Military Active Duty

by Heather Frances Google
State law governs many aspects of military divorce.

State law governs many aspects of military divorce.

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When military members divorce, their cases are influenced by two sets of laws -- state and federal laws pertaining specifically to the military. Military orders and federal laws govern many aspects of active duty life, but most family law issues -- including divorce, child custody and child support -- are governed by both federal and state law.

Federal and State Law

Military divorces are governed by a combination of federal and state law. For example, spouses can receive help from the military in getting adequate child support from a service member prior to divorce; however, once a court establishes a child support order in connection with a divorce, a judge determines how much the military member is to pay. Federal law also governs some aspects of military pensions as well as certain emergency child support orders, but state laws dictate other matters relevant to a military divorce. While state law typically determines which state has jurisdiction over a divorce, federal law dictates that child support cannot exceed 60 percent of a military member’s pay and allowances.

Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act is a federal law that offers protections for military members; SCRA addresses a wide variety of topics, including ending contracts due to military transfers and additional rights when it comes to paying taxes. One of the most important aspects of SCRA is its protection against default judgments, which are judgments entered against a military member because he failed to respond to a lawsuit. Before a court can enter a default judgment in a divorce case, the person filing for divorce must provide information about the defendant spouse’s military status. If the defendant spouse is in the military or his military status is unknown, the court must appoint a lawyer to represent the military member’s interests before it can issue a default divorce.

Stay

SCRA also protects military members who cannot appear in court to defend themselves because of military duty. SCRA permits the military member to request a stay of proceedings, or postponement, for 90 days and the judge must grant the stay when it is properly requested. The request must include a letter from the military member’s commander stating that the military member’s military duty prevents his appearance in court and he is not authorized to take military leave to attend. The military member can request additional stays to postpone the proceedings past the 90 days, but the court does not have to grant these additional stays.

Further Protection

The Uniformed Services Former Spouses’ Protection Act, another federal law, governs other military benefits in a divorce context, including pensions and medical care. USFSPA allows state courts to divide military disposable retirement pay as marital property in a divorce case in accordance with the distribution method used in each state. If the military member was married for at least 10 years, during which time the military member served at least 10 years, the spouse can have her share of the military member’s retirement pay sent directly to her from the Defense Finance and Accounting Service. Often, military spouses lose their medical benefits when they divorce. However, if the couple was married for at least 20 years, during which time the military member performed at least 20 years of military service, USFSPA allows the nonmilitary spouse to receive military medical benefits even after the divorce.