Military Laws on Marital Separation

By Heather Frances J.D.

Military service members encounter similar marital difficulties as civilians, but when it comes to separation or divorce, the rules for a military member are slightly different. A service member has special protections under federal law, and a military couple may be concerned with maintaining a civilian spouse’s benefits when the military spouse returns from overseas.

Civilian Laws

A couple seeking legal separation or divorce must turn to state law and state courts, not the military. The military has no authority to give divorces or legal separations. Though state laws differ, military members and their spouses can usually get a divorce or legal separation, if allowed by state law, in the state where they claim residency or in the state where the military member is stationed. The state courts must also follow a federal law called the Service Members Civil Relief Act that allows active duty military members to receive a stay – or postponement – of a case if the member cannot appear because of military service. In many situations, SCRA also protects the military member from being subject to a default judgment, which is a judgment entered in his absence because he failed to respond.

Separation Agreements

Though not required for a couple to separate, separation agreements may be useful, particularly if there are debts, children, child support or property that must be divided between the spouses. A separation agreement is a contract between the spouses addressing how they will conduct themselves during the period of separation, possibly including such items as who will be making payments on the marital debts and who will use what property or vehicle. Separation agreements can be used by military or civilian couples, and the legal enforceability of these agreements varies by state.

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Military Legal Support and Benefits

Every military service has a Judge Advocate General office that provides limited legal services to military members. Some JAG offices will prepare state-level separation agreements, but the military does not actually recognize any special status for separated couples. In the military, you are either single or married when it comes to a civilian spouse’s military benefits and the military member’s obligation to support his civilian spouse. Until a divorce is final, the civilian spouse will still fully qualify for military benefits like health care, and the military member is still required to provide support for the civilian spouse in compliance with the regulations of his military branch.

Advance Return of Dependents

Being stationed overseas may prove difficult when a military member and a civilian spouse wish to separate. If the civilian spouse wishes to have the military pay for her to move back to the states during her separation from her military husband, she must be granted an “advance return of dependents,” which will allow her to move. A separation agreement is not required to receive permission for advance return since it is sufficient to have a letter from a professional, such as a counselor, who can verify the couple’s marital difficulties.

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Military Guidelines for Paying Child Support


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