Military life can be tough on relationships, and the divorce and separation processes are slightly more complicated when one spouse is enlisted. Because military courts do not grant divorce or legal separation, members and their spouses must address these domestic matters in state courts.
Like civilians, military couples can separate without any formal procedure, but it is often wise to form an agreement governing financial and custody matters during the separation. Separation agreements may discuss topics such as which spouse pays which bills, where the children will live and whether one spouse will send financial support to the other. Some states allow formal legal separation in which the couple’s separation arrangements are approved by a court, but this formal procedure can be as complicated and lengthy as a divorce. The couple’s marriage remains intact even after a formal legal separation is granted.
Few states require spouses to separate before filing for divorce, though grounds for divorce vary between states. Depending on each state’s laws, military couples may have the option to divorce in the state where they are currently stationed, in the state where they claim residency or the state where they last lived as a married couple. Generally, the divorce process requires one spouse to file a petition in a local court asking for the divorce. The other spouse can dispute items contained in the petition or agree to the divorce on the petitioning spouse's terms. If a couple cannot agree on the terms of the divorce, the court decides matters such as child custody and spousal support. A military member has the right to request a stay or postponement of the divorce proceedings if duties prevent him from appearing in court or preparing his case. Stays are automatically granted for 90 days, but judges have discretion to extend them as appropriate.
Nonmilitary spouses receive several benefits because they are married to military members, and those benefits typically terminate when a couple divorces. Most benefits do not terminate when a couple simply separates. For example, a civilian spouse of a military member receives health insurance under TRICARE, the military medical insurance program, but will lose her eligibility when she divorces. However, the Uniformed Services Former Spouses Protection Act, or USFSPA, allows civilian spouses to keep benefits if they were married for at least 20 years during which the military member performed at least 20 years of military service.
Under the terms of USFSPA, state courts can divide military retirement pay as property or alimony in a military divorce, though the judge's award amount is based on state law. If the spouses were married for at least 10 years during which the military member served at least 10 years, the nonmilitary spouse can receive her share of the military member's retirement pay directly from the Defense Finance and Accounting Service, instead of having to wait for her ex-spouse to send the money. Judges can award a share of the military member's pension if the couple was married for less than 10 years, but the nonmilitary spouse cannot receive direct payment.
Under military regulations, members have continuing family obligations while they are separated from their spouses, whether or not divorce is pending. For example, Air Force Instruction 36-2906 requires Air Force members to provide adequate financial support as determined by each member’s commander. All other military branches list specific amounts the military member must provide as support for his family.
While a military member is still legally married, he also must refrain from having a sexual relationship with any other person. Even if he is legally separated or has a divorce pending, sexual intercourse with someone other than his spouse is considered adultery. Since adultery is a crime under military law, military members caught in an adulterous relationship could face prosecution.
References & Resources
- Langley Law Center 2010: Divorce and Separation in Virginia
- NCO Support: Frequently Asked Questions About Military Divorce and Separation
- North Carolina State Bar: Legal Assistance for Military Personnel: Legal Eagle: Fact or Whacked?
- North Carolina State Bar: Legal Assistance for Military Personnel: Legal Eagle: Separation Agreement Survival Guide for Soldiers and Spouses
- United States Army Garrison Presidio of Monterey: Air Force Family Support
- Jupiterimages/Comstock/Getty Images