Military Divorce and Alimony

by Heather Frances J.D. Google
State courts can make service members pay alimony like civilians.

State courts can make service members pay alimony like civilians.

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Military couples cannot get divorced by military courts, so they must get their divorces in state courts. Since divorce laws vary between states, alimony may be awarded in one case but not in a similar case in another state. Alimony amounts may also vary according to each state’s laws, though federal law caps the amount a state court can take from a military member’s wages.

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Federal Law

Though divorces are granted under state laws, certain federal laws affect the military-specific aspects of divorce. The Uniformed Services Former Spouses’ Protection Act allows state courts to divide military pensions as part of a divorce decree, so military pay and pensions can be split in a divorce based on each state’s laws. This federal law does not force state courts to give a certain portion of the military member’s income to his spouse in a divorce, either as property division or alimony.

Alimony Types

State laws typically give courts authority to award alimony on a case-by-case basis within a framework provided by these state laws. State laws permit courts to give alimony for different purposes and for different lengths of time depending on the circumstances. For example, states may allow courts to award rehabilitative alimony to help one spouse obtain training or education so that she can re-enter the workforce in a position where she will be able to support herself. This type of alimony might be appropriate for a military spouse who has not been able to keep consistent employment because of frequent relocations.

Alimony Factors

Often, state laws list certain factors courts must consider in awarding alimony. For example, in addition to four optional factors, Massachusetts requires its courts to consider 16 factors, including the age of the spouses, employability of each spouse and the length of the marriage. Federal law allows military spouses to keep their military medical benefits only if the couple was married for at least 20 years during which the service member performed at least 20 years of military service. A divorce court can consider additional expenses a spouse incurs by providing her own medical insurance.

Alimony Payment

Divorce courts that award alimony typically include the alimony order in a divorce decree signed by the judge, and the Defense Finance and Accounting Service (DFAS) requires a court order before it will distribute any portion of a military member’s pay directly to a former spouse. The court order must provide payment of alimony to a former spouse, so payments directed to other persons or entities -- like direct payments to a school -- are not sufficient for direct payment to a spouse from DFAS. If a court divides military retirement pay as property in a divorce, DFAS can only make direct payments if the spouses were married for at least 10 years during the service member’s military service, but these payment rules do not apply to child support or alimony awards. While courts order garnishment under state laws, federal law caps the amount that can be garnished at 50 percent of the service member’s pay if he is supporting a new spouse or child after the divorce or at 60 percent if he is single.