Despite the fact that military divorces are just as tricky as civilian ones, there are few additional laws that regulate their divorce. Most of the service member-specific laws are concerned with spousal support, service of process, residency rules, and dividing up the pensions. We've summarized the rules that govern the process of military personnel's divorce.
Military Divorce Laws
Both state governments and the US federal government have stipulations and laws concerning a military divorce. Federal laws dictate things like court location for divorcing military personnel, or the division of pensions. State laws govern more general issues like alimony payments. Military marriage divorce will be governed by the state where the divorce is filed.
Any court must have 'jurisdiction' to grant a valid divorce to the members of the military and their spouses. Jurisdiction means the eligibility to judge the case. Civilians usually belong to the jurisdiction of the state where they live. A service member doesn't always belong to the jurisdiction of where he lives. Usually, his/her legal residence is the deciding factor and physical location is secondary.
Residency, Filing Requirements and Stays of Proceedings
Most states no longer continue to apply the residency requirement, which imposed limits on where military divorces could occur. Now, the couple can proceed to divorce in the state they are stationed in, even if they don't have legal resident status.
Usually, servicemen and women can choose where to file for divorce. The three choices are:
- The state where the couple are filed as spouses;
- The state that hosts the stationed serviceman or woman;
- The state where military personnel is officially registered as a legal resident.
Members of the military can choose any one of the three options to file for divorce. Their choice will determine the necessary grounds for divorce, division of marital property, custody of the children, and financial support issues.
Active military personnel has certain protections against court proceedings that normal people do not have.
For instance, Servicemembers Civil Relief Act (SCRA) gives them the option to temporarily pause any civil action initiated against them during the time or within 90 days of their servitude. Of course, a court has to approve the halt.
This law was introduced to allow members of our military to fully concentrate on military affairs and not be distracted by legal affairs during the time of their service.
How to serve military personnel with divorce papers
Most of the time, completing the service process on military personnel is not difficult. We summarized the most common laws and rules specific to every individual branch.
Some military members are not deployed or on active duty, so they don't have to live remotely on the military base. When a military member is living among civilians, effectuating service entails just following the guidelines of the state where he/she currently resides. In practice, military members in this situation can be served by following the standard serve procedure.
On-Post/Active Duty Service
Army On-Post/Active Duty Service
Code of Federal Regulations (Army 32 C.F.R. § 516.10) and Army Regulations explicitly say that officials who belong to DA (Department of Army) "will not prevent or evade the service or process in legal actions brought against the United States or against themselves in their official capacities. If acceptance of service of process would interfere with the performance of military duties, Army officials may designate a representative to accept service. DA personnel sued in their individual capacity should seek legal counsel concerning voluntary acceptance of process."
Basically, this quote says that Army officials will not delay the service of the process. Still, they are also not obligated to take the initiative and complete it for a process server.
Servicemen/women are entitled to legal consultation before accepting service; In those instances, process servers will not be eligible for attempting the service. However, according to this policy, Army doesn't allow its officials to prevent or evade service.
If the military member accepts the service himself/herself, the process server will supply the associated documents to the commander, who will deliver these documents himself. This process takes place solely when a military member consents to the service of the process. In this case, the commander can be seen as a facilitator for the process server.
According to Army regulations, Army property can be accessed only when the state has reserved the right to serve process, places where concurrent jurisdiction is in effect, and places where the United States government has limited interest. Essentially, Army bases located within federal enclaves aren't obligated to let someone enter the premises. If you're curious about federal enclaves, check out this list of some federal enclaves in California. If the jurisdiction of the base is unclear, you may call and enquire about it.
Air Force On-Post/Active Duty Service
Military personnel who serve in the Air Force operate under regulations that are roughly the same as that of the DA. The only minor difference is that the Air Force authorities are more likely to grant the permit to access military installations when the process is being served out of state.
The guidelines clearly state that the commanding officers aren't allowed to actively prevent the serving of the process by being uncooperative.
However, they are under no obligation to complete service either.
When the service member declines the service before consulting legal advice, the Air Force's code of conduct allows process servers in areas of exclusive federal jurisdiction.
In summary, Air Force has more liberal policies than the Department of Army when it comes to granting access permits to military installations under their control.
When it is necessary, commanding officers and Department of Defense representatives can facilitate the process by allowing the process servers to meet the service member who is supposed to be served. When you need to get in touch with an Air Force service member who needs to be served, first you must contact the Department of Defense or Judge Advocate General. Either one of them will help you reach the individual in question and even escort you to the Air Force base if necessary.
Coast Guard On-Post/Active Duty Service
Just as in Air Force's case, there are very few differences between the processes of servicing Army members and members of Coast Guard. It is the obligation of commanding officers to ensure that individual members are free to receive service, but, following the established pattern, they are under no obligation to conclude the service.
The first recommended step is to get in touch with the legal office. They will tell you about the options at your disposal to complete the service. In most cases, you will be escorted by the Provost Marshall or security and service arrangements could be made.
The process of conducting a service on the representatives of Navy and Marine Corps forces follows basically the same pattern as the guidelines for servicing the members of the army, clearly laid out in the Code of Federal Regulation. The only big difference is that you require the consent of a commanding officer to proceed and serve the service member, according to the Navy and Marine Corps. Regulations, a service member is not obligated to accept service from courts located outside of the state.
The Code of Federal Regulations is a guideline for servicing members of the Navy and Marine Corps. It explicitly says:
"Commanding officers afloat and ashore may permit service of process of Federal or State courts upon members, civilian employees, dependents, or contractors residing at or located on a naval installation, if located within their commands.
Service will not be made within the command without the commanding officer's consent. The intent of this provision is to protect against interference with mission accomplishment and to preserve good order and discipline, while not unnecessarily impeding the court's work."
One more limitation is that it is impossible to service the member of this military branch without if there are no commanding or a designated officers present. Code of Federal Regulations says that, in some cases, the service member to be served has every right to legal counsel for figuring out the personal issues and Government counsel for issues that are official in nature.
Accordingly, the required steps to conduct a service on a member of this branch are about the same as the steps for servicing a member of the army.
Similar to the rules that apply to commanding officers in the army, The Code of Federal Regulations doesn't obligate commanding officers in the Navy or Marines to take on a role of a process server or ensure that service actually took place. In this case, the process server is the one fully responsible for making sure that the service has been effectuated.
Servicing deployed service members is troublesome for numerous reasons.
Other than military regulations and codes and the U.S. Code of Federal Regulations, you also have to comply with the guidelines of a country where the service member is deployed. The guidelines for each country are too complicated to describe here, but if you're curious, you can read this text from the 1965 Hague Convention.
We've also covered Servicemembers Civil Relief Act, which includes the language that stipulates that legal proceedings will most likely not proceed until the service member returns from deployment.
If you find it impossible to service a military member in person, you might want to consider other methods. These are the options at your disposal:
- service by sheriff,
- sub-serving the military member's commander
- and sending certified mail.
However, regulations sometimes rule out the use of alternative methods, so check with regulations first to ensure that the method is applicable.
Military Pensions and Benefits
Military pensions are subject to division in the same way as retirement savings accumulated by civilians.
Uniformed Services Former Spouses' Protection Act gives the courts the right to treat military pensions either as community property or individual property, depending on the state. State laws are the deciding factor when determining how to divide the pension.
Defense Finance and Accounting Service will pay the former partner of a service member their share if the marriage has lasted longer than 10 years and the spouses have been together for at least 10 years while one of them was serving in the military (known as the 10/10 rule).
Marriages that didn't last ten years can still be recognized by the court, but a divorcing individual's share will be covered by his/her former spouse, not by DFAS.
In addition to pension benefits, spouses of former military personnel are also eligible for full medical, commissary, and exchange privileges after a military divorce when:
Other than the pension benefits, former spouses of ex-military servicemen are also entitled to certain medical, commissary, and exchange benefits if their marriage satisfies the following criteria:
- The marriage lasted at least 20 years
- The service members have accrued 20 years of service that makes them entitled to a retirement pension
- The marriage and spouse's military service overlapped for 20 years or longer.
Spousal and Child Support
The military code of conduct includes passages about spousal maintenance and child support. These rules were laid out to guarantee service member's adherence to the family support terms of their divorce.
Fulfilling of such obligations can be enforced in numerous ways, specifically:
- Garnishment; or
- Voluntary or Involuntary Allotment.
In some cases, a divorced parent might be obligated to have a life insurance policy that would secure family support payments for some time, even in the event of his/her death.
What to Know About Divorce Overseas
If you want to keep your divorce proceedings simple, file for the divorce in the USA. In most cases, foreign divorce will not be taken into account by U.S courts. Laws that govern the divorce of service members permit them to file for divorce in one of these states: the state of deployment, the state where the military spouse has claimed legal residency or the state where the other spouse currently lives. If you're going to file for divorce outside the US, take note of these concerns:
- Consult with a regular divorce attorney or legal assistance office within the military to go over concerns regarding any property acquired outside the US.
- The government might cover any costs associated with family members and their belongings returning home before the end of a military member's tour of duty.
Can Military Spouses Date Once they are Separated or Legally Separated?
One major distinction between non-military and military separations is concerned with the legality of dating someone else during separation. In most states, after you've gone through with civilian separation (legal or otherwise), it's not illegal to date other people.
The same principle doesn't apply to military separations. Either one of the parties involved in military marriage can be charged with the crime of adultery if they start dating before they are officially divorced. Uniform Code of Military's Article 134 defines the situations in which adultery can be considered a crime:
- The member of the military had extramarital sexual intercourse
- The member of the military or their sexual partner was legally married to someone else when the intercourse occurred, and
- The service member's actions interfered with maintaining good order and discipline in the armed forces, or his/her actions have brought shame to the armed forces.
Someone who is in the military risks persecution if he/she chooses to date someone else before their divorce is finished.
Legal separation doesn't permit you to start dating, either. If you try to justify your actions by arguing that you were legally or practically separated, it may or may not make a difference.
As we've outlined before, divorce is the only way to truly put an end to your marriage. Therefore, you are not allowed to sleep with, or date someone other than your legally recognized spouse until your divorce proceedings are over and marriage has been terminated.
If you want to eliminate any chance of criminal or adultery charges, hold off on dating other people until the court proceedings are finished and your marriage has legally ended.
How Military and Civilian Divorce and Separation Differ
Divorces and separations involving military couples are very difficult because they are regulated by numerous rules and laws imposed by the military, states, and the federal government.
For instance, military pay division, military benefits, and marital property are regulated by military laws and federal statutes.
On the other hand, state laws regulate the divorce proceedings and the majority of the normal divorce issues like rights of each parent with children, family support, alimony, and division of property. The divorces are usually filed in the state where one of the former partners has lived for a certain amount of time.
To understand the differences between military and civilian divorce, follow the link.
Why You Need a Civilian Lawyer
Even though military divorce is quite similar to a civilian divorce, differences are still significant, so you'll need to seek out a civilian lawyer to represent you legally. Before hiring an attorney, you must check their credentials and experience concerning military-related divorces. Your legal representative must thoroughly understand Servicemembers Civil Relief Act (SSCRA) and the Uniform Services Former Spouse Protection Act (USFSPA) to aid you in legal matters effectively.
Military servicemen and their immediate family can freely utilize free legal services offered by JAG (military officers who can provide legal counsel). However, their scope of legal knowledge doesn't always include state divorce laws, since there are so many states with different rules. JAG attorneys can provide very little assistance when it comes to military divorce.
On the other hand, civilian attorneys are familiar with the divorce laws of the state they operate in. To achieve the best results, we recommend hiring a civilian divorce attorney who has mastery over local divorce laws applicable to your case.
How long does a divorce take in the military?
Typically, uncontested divorces are finished within few weeks. This is very quick, especially compared to contested divorces that can take several months or even drag out for more than a year. Servicemembers Civil Relief Act allows one of the parties who serve in the military to put divorce proceedings on hold. If their military service schedule interferes with court proceedings, the proceedings will be paused for 90 days until they are able to participate. A hearing officer, magistrate, or judge can delay proceedings by another 90 days.
How do I file for divorce in the military?
In case a military member and his/her partner decide to divorce, they can choose one of the three states to file for divorce:
- The current residence of the spouse who is filing for divorce;
- The state that hosts stationed military member; or
- The state where a member of the military has legal resident status
Their choice of state will impact various aspects of their divorce, such as grounds required for divorce, division of marital property, parental rights, and support payments.
What is a military wife entitled to in a divorce?
As a former military spouse (wife or husband) you'll have a hard time claiming any benefits after divorce unless your marriage lasted more than 20 years and your partner's creditable military service during your marriage has lasted 20+ years as well. This is the ubiquitous "20/20/20" rule.
For instance, if your marriage lasted more than 20 years, but he/she didn't serve all of those twenty years in the military, you won't be entitled to any benefits. Even if your spouse served for more than twenty years, you still won't receive any benefits if your marriage and his service don't overlap for a period of more than 20 years.
If your marriage complies with the 20/20/20 rule, you're entitled to use the commissary, exchange, and Tricare after you've divorced your military husband/wife. If you choose to marry again, please remember that you'll be giving up all the benefits.
If both the marriage and your military spouse's service lasted over 20 years, but the overlap is only 15 years, you are still entitled to Tricare for one counting from the day when you are officially divorced.
Unfortunately, in all other cases, the military doesn't offer benefits to former spouses of their servicemen. Once the divorce is finished, you'll be stripped of all your benefits.
However, if you had children during your marriage with a military service member, they might retain rights to military benefits, even if your marriage doesn't comply with the 20/20/20 rule and even if you marry someone else. Read more about children's benefits here.
How much alimony does a military wife get?
USFSPA is the governing body that the military relies on for federal statutes. USFSPA guides the military to comply with state statutes on addressing issues, for instance: family support payments and division of retirement pension. The states can treat military pensions and retirement funds based on the same principle as any other shared asset. However, USFSPA gives them the right to classify military retirement pension as a property, rather than income.
Which military branch has the highest divorce rate?
No need to do anything here. Highlight it with red.
Does the military pay for divorce?
The military uses its Defense Finance and Accounting Service arm to make payments of various kinds to retired personnel. An ex-spouse will only qualify for regular payments if the marriage has lasted more than 10 years and the period during which the couple was married also overlapped with 10 years of service.
Will I lose BAH if I get a divorce?
Divorce can affect the status of your BAH. A military member can receive BAH and use it to provide his/her family with a place to live.
Attorneys who specialize in divorces sometimes bring up that ending the marriage might strip divorcees of their dependents, therefore ending their access to BAH.
If the court has granted custody of the children to the other partner that is not in the military, and military member still has to pay child support, a concept known as BAH-differential comes into effect.
This term denotes the amount of money that a member of the military who lives in government-provided single-type housing receives but his/her BAH is only allowed as a consequence of his/her responsibility to pay child support.
The military member is only eligible for BAH-DIFF if the monthly amount of child support payments exceeds the BAH-DIFF rate. Service member's legal rights concerning his/her children, payment of family support, and whether or not he/she lives in a single-type government housing are all major factors.