Divorce can be a confusing, complicated, and stressful time for military couples. However, gaining a general understanding of how this process works, while seeking to identify the specific issues that may apply in your case, can greatly reduce the time, expense, and emotional strain of a divorce. While you will largely follow the same process and procedures as a civilian couple when filing for divorce, there are unique legal issues which may apply result of military service. These issues may include determining the custody of children, calculating child and spousal support, and determining if any post-divorce benefits apply.
While divorce is largely governed by state law and local procedures, depending on where you file, there are certain federal statutes and military regulations which may be applicable to your divorce. Examples include the Uniformed Services Former Spouses’ Protection Act, which can affect how disposable military retired pay is divided between the service member and former spouse, as well as determining eligibility for continued medical, commissary, installation exchange, and other benefits.
Generally, the military views divorce as a private civil matter to be addressed by a civilian court. Commanders rarely get involved in domestic situations except in limited cases, such as a claim by a dependent that he or she is being denied adequate financial support by the service member spouse. Even in such cases, a commander’s authority is limited, absent a civilian court order.
In a divorce or family law matter, a service member and dependent spouse will need separate legal assistance attorneys to advise them to ensure both parties receive independent, candid and confidential advice, and to be sure there is no conflict of interest in the representation of both parties. Communications between a client and a legal assistance attorney are private, confidential and are generally covered by the attorney-client privilege. While military legal assistance attorneys may not be able to draft specific court documents or represent members or their families in court, they can provide helpful advice on a range of legal issues including divorce and child custody, income taxes, the Service members Civil Relief Act and wills.
For military divorce or legal separation situations that require representation in civil court or involve contested issues such as child custody, spousal/child support or division of assets like retirement pay, it is recommended that you consult with a civilian attorney who is knowledgeable of the divorce laws of your particular state and has extensive experience with military-related family law.
The Service members Civil Relief Act helps protect service members’ legal rights when called to active duty. It applies to active-duty members of the regular forces, members of the National Guard when serving in an active-duty status under federal orders, members of the reserve called to active duty and members of the Armed Services, National Oceanic and Atmospheric Administration, Public Health and the Coast Guard serving on active duty in support of the armed forces.
In regard to divorce proceedings, service members may obtain a “stay” or postponement of a civil court or administrative proceedings if they can show their military service prevents them from either asserting or protecting a legal right such as an upcoming deployment. This is not an automatic right, and a military judge must find there good cause to do so, based on the justification provided by the military member.
Specifically, the courts will look to whether military service materially affected the service member’s ability to take or defend an action in court. If the service member submits a written communication to the court showing:
The Service members Civil Relief Act also provides certain protections for members regarding default judgments for failure to respond to a lawsuit or failure to appear at trial. Before a court can enter a default judgment against a military member, the person suing the member must provide the court with an affidavit stating the defendant is not in the military. If the defendant is in the military, the court will appoint an attorney to represent the defendant’s interests (usually by seeking a delay of proceedings). If a default judgment is entered against a service member, the judgment may be reopened if the member makes an application within 90 days after leaving active duty, shows he/she was prejudiced and shows he/she had a legal defense.
The Uniformed Services Former Spouse Protection Act is a federal law that provides certain benefits to former spouses of military members. The benefits may affect receipt of retirement pay and medical care, as well as the use of the exchanges and commissaries. For detailed information about this act and how it may impact your divorce proceedings, please read the article Uniformed Services Former Spouse Protection Act for Divorced Spouses in the Military.
Whether you are entitled to commissary, exchange or medical benefits depends on the length of time you were married, the length of time your spouse served in the military and the number of years your marriage overlapped with his or her military service. To retain full military benefits and privileges upon divorce from a service member, you must meet the requirements of what is known as the “20/20/20 Rule.”
20/20/20 former spouse: An un-remarried former spouse receives medical, commissary, exchange and theater privileges under the Morale, Welfare and Recreation program if:
Therefore, if you were married for at least 20 years, and your former spouse performed at least 20 years of service creditable for retired pay, and there was at least a 20-year overlap of the marriage and the military service, you are entitled to full commissary, exchange and health care benefits after the divorce.
20/20/15 former spouse: In the event that you cannot qualify under the “20/20/20 Rule,” you may still be eligible to one year of transitional military benefits for purposes of military medical care only. Similarly, the 20/20/15 rule requires the former spouse to show three things:
Should these requirements be met, the former spouse will be entitled to retain TRICARE medical coverage, but only for a transitional period of one year. Unlike a 20/20/20 former spouse, a 20/20/15 former spouse will not have access to the military exchange, installation privileges or commissary privileges.
Unless you meet the strict requirements of the 20/20 Rule, you will not be eligible to continue using the commissaries and exchanges once your divorce, dissolution or annulment is finalized. Until your divorce is final you may retain your identification card and can continue to receive your commissary, exchange and health care benefits. Here are some additional issues for you to consider:
If you are living overseas when your marriage is terminated by divorce or annulment, you and your children (as well as your possessions) may be able to return to the United States (or your country of origin if you are foreign nationals) at the government’s expense. Service members permanently stationed outside the United States may request early return of dependents, authorizing the return of command-sponsored family members and their household goods before the service member’s tour ends.