Filing for Divorce in the Military


Filing for Divorce in the Military

Going through a divorce is always tough. And when you’re in the military, there are extra steps and considerations that can make it feel even more overwhelming. From understanding how your benefits could be affected to figuring out the right place to file, there’s a lot to think about.

This is where a lawyer comes in. A good lawyer can help you through the process by explaining your rights, handling paperwork, and representing you in court if needed. They know the ins and outs of military divorce and can guide you through decisions about child support, dividing pensions, and more.

How Military Divorces Differ from Civilian Divorces

Military divorces often involve unique challenges and legal considerations that set them apart from civilian divorces. These differences stem from the distinct nature of military service, including factors like deployment, residency requirements, and specific military benefits. Here are some of the key areas in which military divorces differ from civilian divorces: 

Jurisdiction and Filing Location

In a military divorce, deciding where to file the divorce petition can be complicated. Unlike civilian divorces, where couples typically file in the state where they currently live, military personnel have several options. They can file for divorce in the state where the servicemember is stationed, the state where the servicemember claims legal residency, or the state where the non-military spouse resides. This flexibility allows for strategic decisions based on the laws of different states, which can affect the divorce outcome, especially concerning spousal support, child custody, and division of assets. 

The Servicemembers Civil Relief Act (SCRA)

The SCRA offers special legal protections to military personnel that can significantly impact divorce proceedings. For example, if a servicemember is on active duty or deployed, they can request a postponement of court proceedings. This protection ensures that military duties do not hinder the servicemember’s ability to participate in their divorce case, aiming to provide a fair opportunity for defense. However, it can also delay the divorce process significantly compared to civilian cases. 

Division of Military Pensions and Benefits

Military divorces require careful handling of asset division when it comes to military pensions and benefits, which is often more complex than dividing civilian retirement accounts. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), a non-military spouse may be entitled to a portion of the servicemember’s pension. Their eligibility depends on the length of the marriage and its overlap with military service. Additionally, considerations for healthcare, commissary, and exchange privileges add layers of complexity not typically found in civilian divorces. 

Child Custody and Visitation

Child custody arrangements in military divorces must account for the unique demands of military service, including deployments, training, and relocations. These factors can make traditional custody and visitation schedules impractical or impossible. Courts often have to create flexible parenting plans that accommodate the servicemember’s schedule while prioritizing the child’s best interests. This flexibility is essential to ensure that military duties do not unfairly disadvantage servicemembers in custody cases. 

Child Support and Spousal Support

Child support and spousal support in military divorces differ from civilian divorces primarily due to the unique aspects of military pay and benefits. In military divorces, the calculation of support payments often includes considerations for various types of military pay. This includes basic allowance for housing (BAH), basic allowance for subsistence (BAS), and special pay or bonuses, which usually don’t have direct equivalents in civilian employment.

The USFSPA allows for the treatment of military retired pay as property instead of income, affecting how courts divide assets and determine alimony or spousal support in military divorces. Furthermore, the military enforces support obligations differently, providing mechanisms through which a spouse can seek enforcement of support orders directly from the servicemember’s pay via the Defense Finance and Accounting Service (DFAS). 

Impact on Military Housing

Military divorces can have immediate effects on housing. Servicemembers and their families often live in military housing, but a divorce can lead to eligibility changes. Typically, the servicemember retains the right to military housing, while the non-military spouse must often find alternative accommodations. This situation contrasts with civilian divorces, where decisions about the marital home don’t involve military housing rules and can be more straightforward. 

How Long a Military Divorce Can Take

The duration of military divorces compared to civilian divorces can vary significantly due to several factors unique to the military lifestyle. Military divorces often face delays not present in civilian proceedings, primarily because of the SCRA, which can postpone divorce cases while a servicemember is on active duty and for a short period afterward. Additionally, determining jurisdiction and dealing with deployments or relocations can complicate and lengthen the process.

A civilian divorce might conclude within a few months to a year, depending on the complexity of the family’s relationships and assets and the state’s laws. Conversely, a military divorce could last much longer, especially if the servicemember is deployed or stationed overseas. 

How a Military Divorce Attorney Can Help

Filing for Divorce in the Military

Dealing with a military divorce requires a deep understanding of both military and family law. A knowledgeable lawyer with experience in military divorce cases can protect your rights and make the process go as smoothly as possible by:

  • Identifying the ideal jurisdiction for filing your divorce petition
  • Explaining and implementing the protections offered by the SCRA
  • Calculating appropriate child and spousal support payments, including military benefits
  • Negotiating the division of military pensions under the USFSPA
  • Facilitating the proper division of assets, considering military-specific circumstances
  • Representing you in court, especially if deployments prevent your physical presence
  • Advising you on custody arrangements that account for deployments and relocations
  • Drafting and reviewing settlement agreements to include military-specific provisions
  • Drafting and filing necessary legal documents accurately and on time
  • Communicating with military legal assistance offices on your behalf
  • Guiding you through the complexities of military health care benefits post-divorce
  • Protecting your rights to military housing or ensuring appropriate housing allowances
  • Advocating for your interests in mediation or settlement negotiations
  • Assisting with the enforcement of court orders through military channels
  • Providing advice on the impact of divorce on your military retirement benefits 

Contact a Military Divorce Lawyer Now

Feeling overwhelmed by your military divorce? The Austin divorce attorneys of Smith Family Law are here to help. Contact us today at (512) 648-5487 for a free initial consultation, and let us provide the guidance and support you need to move forward.

Written by: Smith Family Law

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