What Is Military Divorce
Military divorce is very different from civilian divorce. The result is the same but your will need a military divorce lawyer instead of a civilian one. This is because such a divorce is governed by both state and federal laws. Civilian divorce lawyers are generally not well versed in federal law in regards to divorce of a member of the military. If you are the spouse of a service member, whether you also serve or are a civilian, you will need an attorney that specializes in military divorce.
Federal laws apply to divorce proceedings when one of the parties is active duty, reserve or National Guard or retired. Some states have relaxed their residency requirements since service members are so nomadic and may not meet residency requirements. State laws govern minor child visitation and spousal support while federal laws govern child support, property division and military benefits.
Divorcing a member of the military, whether active or retired, can be problematic and lengthy. Members of the military are legally protected from lawsuits, including divorce, so that they can do their job in protecting our country. This is due to the SCRA (Service Members’ Civil Relief Act). This does not mean they can’t be divorced but that certain privileges are extended. Courts will usually delay a divorce until at least 60 days after the member’s active duty ends. The defendant is served with the Complaint; if they are overseas the military might do it for you but he or she must consent to service. If they refuse to accept those papers you will have to return to court and ask that they appoint an officer of the court to serve the papers. Of course, a military spouse can waive his or her right to the protection of SCRA if they do not contest the divorce.
As to division of marital property the Uniformed Services Former Spouses’ Protection Act (USFSPA) controls this part of the dissolution of a military marriage. It allows a portion of a military retiree’s pay to be paid to the former spouse and also allows state courts to divide retirement benefits. Former spouses are eligible for complete medical, commissary and exchange privileges if the marriage lasted at least 20 years, the member had at least 20 years of service and there was at minimum a 20 year overlap of the marriage and the military service. A military divorce lawyer can help you with this sometimes confusing set of requirements. If the non-military spouse remarries they give up these benefits but they restored if that marriage ends. Child support, up to 60% of the service member’s wages, can be garnished.
As you can see, there are many issues you must address if you want to dissolve a marriage with a member of the military. There are many regulations that family divorce lawyers are not aware of so it is almost imperative to shop around for a divorce lawyer that specializes in military divorce.
When File for A Military Divorce
Being married to a member of the military has unique challenges both physically and emotionally that ultimately culminate in retaining a divorce lawyer. Many couples don’t know where they’ll be from one year to the next or if they’ll be together next month. Deployments to foreign soil as well as the stress of duties at home lead many military couples into the offices of divorce lawyers. But when do you know when to file for a military divorce and how to you prepare?
Everyone’s breaking point is different but you might file when your marriage threatens to ruin your mental or physical health. You may realize one day that you’re living with a virtual stranger instead of that wonderful person you married. Whatever finally moves you to contact a military divorce lawyer you should never take action when you are emotionally fragile. There are also some things you need to do before you first consult an attorney. If you don’t you could risk making some very costly mistakes.
First, take your time and assess your financial situation. Document everything with statements or other proof so that if your spouse tries to hide assets you’ll be able to prove it. You have obvious things like your house and vehicles as well as pension plans but don’t forget to count artwork, the material goods you brought into the marriage and inheritances. Then list what you owe and get credit reports to document it. Your credit reports prove how financially responsible you are. If your credit report has few debts with on time payments you will look much better than your spouse if their report has late payments and debts disproportionate to their income.
Get proof of income such as pay stubs to give your divorce lawyer an idea of your expenses versus income. Make a post-divorce budget of costs of living in order to see how to structure your plans. If you don’t already, get credit in your own name so that you can buy a car if you need to; use that credit wisely and rarely, just to get a good score, and pay it off in full every month.
Now you are ready to find a divorce lawyer who specializes in military matters. This is essential so that you can protect your rights before and after you file. Choose an attorney with experience in military divorce; at least ten years’ experience is a good indication that he or she will get the process done as quickly as possible yet still be willing to fight for your rights and well being. Divorce lawyers appreciate their clients having all their financial information already prepared and it will save you money in billable hours.
See if you and your spouse can cooperate and reach a fair settlement. That will speed up the process and save you both money. If not, your attorney has to be able to negotiate and argue before the judge for what you are entitled to. It is always better to remain on friendly or at least civil terms, especially if you have children together.
Once you have your information gathered and documented, your post-divorce budget and plan in place and can look at things objectively, it’s time to choose a divorce lawyer. Being prepared will insure the best possible outcome for you and the best fresh start possible.
Where to File for a Military Divorce
While divorce lawyers know that military divorce has special considerations, most civilians aren’t aware that there are many unique circumstances to consider when obtaining dissolution of marriage from a member of the armed forces. One of the most important matters concerns where you file your petition for divorce.
Since a life in the military often means a lot of relocations, you may have a choice of where to file for your divorce—and it matters a lot where you file. While civilian couples file papers in the county where they live, you may not have lived long enough in your present location to qualify for residency. Many states have relaxed their residency requirements in regards to the military; you should first check the state in which you currently live for their requirements. Many divorce lawyers offer initial consultations at no charge and you can use this opportunity to ascertain your residence status.
To illustrate how important it is to file in the right location, picture a service member who is stationed in Puerto Rico. He or she wants a divorce and their spouse is amenable but not very knowledgeable of the law. They file in that territory and, too late, the spouse discovers that Puerto Rico does not divide the military person’s pension between the couple. By allowing the filing to happen in the wrong place, that spouse has lost their rights to share in the pension but the spouse that filed won a distinct advantage.
This is one reason why it is so important to consult a divorce lawyer that specializes in military divorce law, which is a combination of state and federal laws.
The state that the service member claims as his or her home has nothing to do with the state will have jurisdiction when you file your divorce papers. For instance, you may have been married in Florida but you have lived with your spouse in California and also in Ohio. You could file in any of those states under the right circumstances. You do not need to divorce in the state where you were married. Also, both spouses don’t have to be residents of the state in which the papers are filed if the defendant does not object to the divorce. This makes it possible to file for divorce when your spouse is deployed, although such timing is generally frowned upon for humane reasons.
You should choose the state where you have at least two of the following: bank account, driver’s license, car titles, property that you pay taxes on, a church home or you vote there. Most of these items establish residency but you if you live in one state and have all these in another, consider the travel cost to file in that state—it might pay to establish residency where you are.
You may also want to consult a divorce lawyer if you would prefer a separation (or limited divorce) prior to dissolving the marriage. Some couples benefit from such a delay and are able to repair their marriage. A state like North Carolina that requires a year’s separation will give you time to try to salvage the relationship or figure out a plan if you can’t. And while all states have no-fault, some require a reason for divorce such as infidelity or abuse; the innocent spouse might get a bigger share of the joint assets or spousal support in such cases. In some states like Virginia deployment counts as legal separation if one of you intended the separation to be permanent.
Divorce lawyers that specialize in military divorce can help you through the all the regulations, residence requirements and advise you where you should file your papers in order to get the best outcome possible.
Who Can File For a Military Divorce
Obviously, if you are married to a member of the armed forces, you can retain a military divorce lawyer and file for divorce. But there is often some confusion as to the plaintiff’s status; the plaintiff is the person who initiates, or files for, divorce while the defendant is the person who receives notice of the filing and must respond. Whether you are the plaintiff or the defendant, both state and federal laws apply to your divorce no matter if you are a member of the armed services or not.
As with civilian divorces you do not need grounds-or reason-to file for a military divorce. If you and your spouse no longer want to be married, if one of you wants out of the marriage or you are a civilian spouse who finds life in the military intolerable you can file for divorce from a service member. You do not need to be a service member yourself to file for divorce from a member of the armed forces.
Civilian spouses of members of the military can retain a military divorce lawyer and start proceedings to dissolve the marriage. Although federal regulations dictate that civil lawsuits such as divorce cannot be served on active personnel, the defendant can waive his or her right of protection under SCRA if they so wish.
If you are a member of the armed forces yourself and married to another service member the same rules apply. If you are in the military and married to a civilian you can file for divorce just as your spouse can.
Military divorce laws also apply to retirees from the armed forces and their spouses. If you’ve been married for at least 20 years and you are a civilian you are eligible to retain comprehensive medical benefits as well as commissary and exchange privileges. Just because you or your spouse is retired does not exclude you from federal divorce laws regarding the armed forces. There are certain conditions you must meet regarding the length of the marriage.
Of course, you can hire a military divorce lawyer and file for divorce as little as one day after your wedding. As long as you’ve been officially married to a member of the military you are entitled to file for divorce and can be entitled to receive a portion of your spouse’s benefits. That does not mean you will receive such benefits but according to the law it is possible.
Even though you may be a civilian there are certain federal laws that apply when you file for divorce from a member of the military. Civilian divorce lawyers might know the basic premises of those laws but they will usually refer you to a divorce lawyer that specializes in military family law.
Why File For a Military Divorce
Military divorce is quite unique from civilian divorce and it usually takes an experienced divorce lawyer specializing in such laws. Most civilians and many members of the armed forces are not aware that if they should want to divorce sometime in the future there are special federal and state laws that will apply.
One way in which divorce from a member of the armed forces is the same as a civilian is that you do not need grounds for a divorce. If you are filing for financial reasons or any other cause you do not have to declare it in most states. In some states you do need to offer a reason but consult a military divorce lawyer; he or she will let you know how that might affect the outcome of your settlement.
There are a number of reasons why a spouse might want to divorce a member of the military. Most couples have no idea what pressures they will face in military life, particularly if one spouse is forced to be absent for long periods of time. One of the most common reasons for divorce in the armed services is PTSD, or post traumatic stress disorder. After the horrors and demands of a war zone, a veteran can have significant difficulty re-adjusting to domestic life; even the sound of a car backfiring can send them into a panic. They can be tense, tearful or devoid of emotion and their spouse cannot break through their emotional defenses. Divorce lawyers have seen many such cases where the couple has tried everything possible to stay together but failed when one spouse suffered from PTSD.
Military marriages also fail when one spouse is left alone, either on their own or with children, for months or years at a time. Many say it is like being a single parent with little financial support and all the responsibilities of maintaining a long-distance relationship. The couple may agree to end the marriage in such cases. Deployment forces the spouse left behind to live a mostly solitary life as they are married and naturally don’t want to date.
The emotional and physical challenges of military life also contribute to many of the dissolutions that military divorce lawyers deal with. When a member is called to duty it does not matter whether their child is having a birthday party, they’ve promised to go on a date with their spouse or there is a family obligation—the military takes precedence over everything. Many spouses can cheerfully deal with these circumstances for awhile but find it difficult as the children get older or the couple moves around the country or the world and are unable to forge lasting friendships with other people.
There are many reasons why a spouse would retain a military divorce lawyer and very few of them are trivial. Retaining a divorce lawyer who specializes in military divorce can make it a little less traumatic for both parties.