Plan Your Military Divorce For Success—For You And Your Family
Military divorce is quite different from civilian divorce, for practical reasons.
Simply put, being a service member on active duty away from your home, spouse, and children presents its own set of challenges.
If you are the spouse of a service member or a service member yourself, we understand what you’re going through if you’re considering divorce, and we know how to deal with it. We’ve been in practice since 1992 and have handled countless Maryland, Virginia, Pennsylvania, and DC military divorce cases.
Whether you’re a currently serving service member or a soon-to-be-ex “MilSpouse”, JC Law is here to serve you and your family with as smooth a divorce as possible.
How Is Military Divorce Different From Civilian Divorce?
The answer is both. While servicemembers stationed at any military installation are bound by military law, you cannot file for divorce in a military court.
Here’s why:
- Grounds for divorce—If you’re a service member on active duty, it’s hard enough to be away from your family and children. And it’s equally difficult for the spouse of a service member who is serving overseas. However, this does not change the grounds for military divorce, which are generally the same as civilian divorce.
- Service requirements—If serving overseas, the law prevents the “stay-at-home” spouse from getting a divorce without the service member’s knowledge or consent. The active duty spouse must be served with papers and can postpone divorce proceedings until his or her return from duty. (The service member may choose to waive his or her rights and get divorced anyway.)
- Military pension benefits—The pension may be marital property, divided between the service member and the ex-spouse. The service member’s benefits are sent directly to the ex-spouse if they were married for more than 10 years. If you were married less than 10 years, you have more control, to the extent of what a court order says, over how the benefits are divided.
Instead, you must file for divorce in a circuit court with jurisdiction—the authority to judge and grant divorce decrees in your current county.
These residency requirements will vary and can be waived, depending on your circumstances. If you need help understanding whether you are eligible for a divorce, contact a military divorce lawyer for guidance.
Beyond divorce law, there are special rules that apply to military divorces.
For example, the Servicemembers Civil Relief Act (SCRA) allows service members to postpone divorce and other proceedings while they are on active duty and for up to 60 days afterward.
This postponement gives the servicemember time to review the divorce petition, hire a military divorce attorney, and respond appropriately. Civilians only have 30 days to respond and file their divorce motion after being served.
That said, the active duty servicemember can waive this right if they want the divorce to proceed.
Finally, if you or your spouse is on active duty, you might have difficulty serving your divorce petition, especially if someone is currently overseas despite their permanent residency.
Remember, simply filing for divorce is not enough. You must properly deliver the divorce papers to your spouse. JC Law military divorce lawyers have extensive experience handling military divorces, including creative ways to legally serve and progress your divorce petition.
Do I Have To File For Divorce As A Service Member?
Many states will allow a military member or their spouse to file for divorce in the state where the servicemember is stationed.
Generally speaking, military members and their spouses have three choices when it comes to which state to file for divorce:
- The state where the filing military spouse resides
- The state where the military member is stationed
- The state where the military member claims legal residency
These can be three separate states from which to choose or the same.
When choosing a state in which to file, remember that divorce requirements, property distribution, child custody, and alimony orders will be governed by the laws of the state in which the divorce petition is filed.
Military members or spouses planning for divorce would be wise to consult their legal aid office on base for further information, or contact a qualified divorce lawyer in the state where they wish to file.
How Do Military Pensions And Retirement Pay Impact Maryland Divorces?
It’s possible that a military spouse could be granted part of their ex-spouse’s military retirement benefits, with a few caveats.
When it comes to dividing up property and money, including income and retirement accounts, Maryland is an equitable distribution state.
In other words, your property isn’t simply divided 50/50. Instead, the court assesses a variety of factors when dividing property and decides what seems fair under your circumstances.
However, additional rules apply to military pensions and retirement pay.
For example, military retirement pay and pensions are typically considered marital property. Their status as “marital property” places them within the possible jurisdiction of Maryland courts to divide “equitably” between the two parties, even if one spouse did not actively serve in the military.
However, the Uniformed Services Former Spouses’ Protection Act (USFSPA) limits a state’s jurisdiction over pensions and other military benefits. Typically, the military spouse must file for divorce in the state where their servicemember resides. Otherwise, Maryland state courts cannot divide the military pension during your divorce.
Once you file for divorce in the correct state, the USFSPA also dictates how the military pensions are distributed. A military spouse is eligible for direct payment of their spouse’s military pension if:
- The service member has at least ten credible military service years, and;
- The military couple was married for at least ten credible military service years.
Military spouses who qualify for direct payment will receive payments from the Defense Finance and Accounting Service (DFAS).
If you do not meet the “10/10 rule,” you must collect pension payments from your ex-spouse if Maryland courts otherwise determine you qualify for a portion of their retirement. This more complex process typically requires help from an experienced military divorce lawyer.
Former military spouses may also have a right to survivors’ benefits, as well. Your lawyer can help you determine and gain those rights if needed.
What Other Military Benefits Can Former Military Spouses Keep After Divorce?
In addition to pension benefits, former military spouses are also eligible for full medical, commissary, and exchange privileges when:
- The couple was married for 20 years or more.
- The service member has performed at least 20 years of creditable service toward retirement pay.
- There was at least a 20-year overlap of marriage and military service.
How Will Child Support And Alimony Be Determined In A Military Divorce?
The military has special rules concerning spousal maintenance (alimony) and child support. These rules are designed to ensure a servicemember’s family support obligations beyond divorce or separation.
A court may enforce spousal and child support obligations in several ways, including:
- Court-order
- Garnishment
- Voluntary or involuntary allotment
A court may also require the providing spouse to maintain life insurance that would cover child or alimony support payments for a specific period.
Note, however, that such payments for either child support or alimony are automatic. Courts consider the entire family dynamic and financial situation.
With some evidence provided by your military divorce lawyer, some judges may rule that the situation requires the former military spouse to provide the servicemember with child support or alimony payments, not the other way around.
Contact An Overseas Separation Laws Attorney
Call (888) JCLaw-10 or email us for a free consultation.
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