Military Divorce 101: Considerations in Representing a Party in a Military Divorce

A military divorce differs from a nonmilitary divorce in several key ways due to the unique circumstances surrounding military life such as deployments and frequent relocations, and due to the federal laws which preempt and govern certain areas of divorce which are typically addressed by state law. For purposes of this article, the term “military divorce” is a divorce which involves one or both parties who are, or have been, in active military service during the marriage. The divorce process itself is litigated in the applicable state court having jurisdiction over the matter¹, not in a military court. While this article is not meant to provide a complete overview of all of the nuances of a divorce involving a miliary serviceperson, it does seek to provide the reader with a basic understanding of the primary areas of particular concern to an attorney representing a party in such a divorce.

What laws apply?

Generally, a state’s laws govern jurisdiction over the subject matter and parties to a divorce, and over any children of the divorce; equitable distribution of assets and debts belonging to either party; and support. However, in representing a party in a divorce involving a military servicemember, it is important to familiarize yourself with the Servicemembers Civil Relief Act (“SCRA”)², ³ and the Uniformed Services Former Spouses’ Protection Act (USFSPA)⁴

1. Jurisdiction and Residency Requirements:

In a divorce where no service member is involved, jurisdiction over the elements of a divorce and the parties is governed by state statute, which include matters of jurisdiction and residency requirements. However, in a military divorce, a service member can file for divorce in the state where the service member is stationed, even if the service member does not meet the residency requirements of that state, due to the provisions of the SCRA. This can make it easier for military personnel to file for divorce while stationed far from their home state.

2. Service Member’s Deployment and Absence:

The SCRA provides protection for deployed military members from having a default judgment entered against them. If a service member is deployed or stationed overseas, the court may delay the divorce proceedings until the service member is available. If you represent a client who is deployed, you may have to apply for a stay of the proceedings until they are able to participate in the proceedings. You must also familiarize yourself with the particular details regarding service of process of active servicemembers on military bases.

3. Division of Military Retirement Benefits:

A significant difference between a military divorce and a nonmilitary divorce is the requirements for the division of a military spouse’s retirement benefits. In a non-military divorce, a party’s retirement benefits accumulated or accrued between the date of marriage and the marriage end-date is subject to equitable distribution (typically by way of a Qualified Domestic Relations Order, or “QDRO). In a military divorce, the division of a pension is subject to distribution pursuant to the USFSPA. A spouse may be entitled to a portion of the service member’s military pension, however, the “10/10 Rule”, as it is colloquially referred to, applies to the division of such a pension. It requires that the divorcing couple have been married for at least 10 years, and that the servicemember must have been in service for at least 10 years. In the event the nonmilitary spouse qualifies for a military spouse’s military pension, the spouse can receive direct payments from the military, which are processed through the Defense Finance and Accounting Service (DFAS).

4. Child Custody and Parenting Time:

While custody and parenting time issues litigated as part of a divorce filed in New
Jersey will be governed by New Jersey law, a service member has rights under the SCRA which govern in circumstances in which orders are entered respecting the custody and parenting time of children of that service member while deployed. Pursuant to section 3938 of the Act, if a court renders a temporary order for custodial responsibility for a child based solely on a deployment or anticipated deployment of a parent who is a service member, the court shall require that the temporary order shall expire not later than the period justified by the deployment of the service member.

5. Spousal Support (Alimony) and Child Support.

In a non-military divorce, a spouse’s right to alimony is based upon the state’s alimony statute. Factors like the length of the marriage, the financial needs and resources of both parties, and the recipient spouse’s ability to support themselves are considered. There are no special considerations tied to the employment type of either spouse and Courts will generally simply utilize an obligor’s gross pay when calculating the amount of the alimony obligation.

Military pay differs from civilian income and includes allowances and benefits such as housing allowances (BAH), subsistence allowances (BAS), and hazard pay or combat pay. Hazard and combat pay cannot be considered for alimony purposes; however, they are includable for the purpose of calculating child support obligations. You should also check local (state) rules for which components of a service member’s pay are includable for the purpose of calculating child support.

• Basic Pay vs. Allowances:
  In many cases, the court may consider basic pay (the service member’s standard salary) as well as other allowances, depending on how they are structured in the divorce decree.
• VA Disability Pay:
  If a service member receives disability compensation from the Veterans Administration (VA), that amount is generally exempt from being used for alimony payments. This is important because VA disability benefits cannot be garnished for alimony.
• Post Divorce Enforcement of Alimony Obligations:
  Military service members are still obligated to pay alimony, and enforcement mechanisms, such as wage garnishments, can be applied to military pay if necessary (this is through Defense Finance and Accounting Service, or DFAS). However, if the service member is receiving disability benefits, those cannot be garnished for alimony.
• Enforcement of Child Support obligations:
  Enforcement of a child support order against a service member who is frequently relocated can be complicated, but it does not absolve the service member from the obligations. If a military service member is stationed overseas or is being deployed abroad, child support payments can still be enforced under the International Child Support Enforcement Act. The Uniform Interstate Family Support Act (UIFSA) allows child support orders to be enforced across state lines and even internationally in some cases. The service member’s base pay and other benefits may still be subject to garnishment for child support, even if the service member is stationed outside the United States.
• Modifications of alimony and child support obligations:
  If the service member’s financial situation changes due to military service (e.g., deployment, relocation, or retirement), the service
  member can petition the court for a modification of the alimony order. Courts will consider the service member’s income and the circumstances of the change in pay when determining if a reduction in alimony is appropriate.

There are also special considerations for military spouses who may be eligible for certain Survivor Benefit Plans and benefits related to the service member’s military service, and where those eligibilities might end with a divorce.

Where a party is a retired military service person, there are also limitations on the amount of support which can be ordered from the military pay pursuant to USFSPA.

6. Health Insurance and Benefits:

In a non-miliary divorce, a party can only be insured on their spouse’s employer-sponsored health insurance plan through the entry of a Judgment of Divorce. The right to be insured on a spouse’s employer sponsored health insurance can then only continue for a specified-post-judgment period through the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). A military spouse may be entitled to health care benefits through TRICARE (the military’s health insurance program) after a divorce, but only if the couple was married for at least 20 years, and the service member served for 20 years. This is known as the “20/20 rule”.

Military divorces and civilian divorces differ in several important substantive and procedural aspects. When preparing to represent a client involved in a military divorce, attention must be given to the particular nuances and rights a service member, and their spouse, will have
to confront in deciding when, and how, to initiate the dissolution of their marriage. I hope that this article has given you the general overview you need to start you on the path to understanding what has to be accounted for in order to provide proper legal advice and representation to a party in a military divorce.

---

1. Generally, a child’s “home state” has jurisdiction over custody and parenting time matters. There are some limited circumstances in which custody-related issues may be addressed in Federal Court, such as in a parental kidnapping case involving a foreign country; however, those cases are the exception rather than the norm.
2. 50 U.S.C. 3901 et seq.
3. The SCRA provides protections which apply in areas other than family law – including stays of legal proceedings during deployment; against the entry of default judgments; interest rate reductions on debt; eviction protection; and protection against foreclosure.
4. 10 U.S.C. 1408