When getting a divorce, service members and their spouses should become familiar with the legal issues that affect military divorces. There are legal issues in a military divorce that are unlike those facing non-military couples.
There is help available. The military legal assistance lawyers on military bases cannot represent anyone in a divorce, but some private attorneys specialize in these issues.
How Does the Military Connection Affect Where do I File For Divorce?
When one or both parties are in the military, divorce is governed by a combination of state and federal laws. Under the Servicemembers Civil Relief Act, military personnel are generally immune from civil actions (including actions for divorce) while on active duty. At the discretion of the court, they may also be immune for up to 60 days after their active duty service ends.
Almost all matters of family law are governed by the states, however. Divorce is no exception, and that includes divorce that involves military personnel. Federal law does cover emergency child support and military pensions, which can come up in military divorces. Other than that, though, individual states have almost exclusive authority.
In order for a state to hear any civil action (including divorce), it has to have authority to do so. This authority is known as “jurisdiction,” and is usually determined by the state in which one or both parties reside. For a person in the military, determining their state of residence is sometimes difficult.
There are a few ways to decide the state in which a divorce action should be filed:
- The state in which the filing spouse resides
- The state in which the military member is stationed (if stationed in the United States)
- The state in which the military service member claims legal residence (their state of residence at the time of enlistment, or the state to which they plan to return after their military service ends)
The spouse in the military will have to be served with divorce papers before the action can go forward. If the spouse is stationed overseas, the other spouse can request the military to serve them. However, the spouse must consent to service. If they do not consent, the court will appoint a third party to attempt service, unless they are serving on a ship.
Can a servicemember slow down the divorce? Generally, when one spouse serves a divorce petition on the other spouse, the responding spouse must file a formal response, or “answer,” within a specific number of days. Then the court goes forward with scheduling the next steps in the divorce (such as hearings before the court or mediation). However, there is a federal law that can change the normal schedule and deadlines if one party is on active duty. This law is the “Servicemembers Civil Relief Act,” or SCRA.
The SCRA allows active-duty service members to request a “stay” (that is, to delay the proceedings) of a divorce if their duties prevent them from participating in or responding to the court action. The initial stay is for at least 90 days. The court can grant extensions after 90 days, but one can’t postpone the divorce forever.
What Happens to My Military Benefits?
You may retain your identification card and continue to receive your commissary, exchange and health care benefits until your divorce ise. Here are some additional issues that will change?:
- Installation housing — You will typically lose installation family housing within 30 days after one of you moves out due to a divorce.
- Moving costs — The military may pay the moving expenses of the non-military spouse returning home from an overseas duty station. The divorcing parties could negotiate the cost of an in-state move as part of the settlement.
- Health care benefits — You will lose TRICARE benefits because of the divorce, but you can buy up to 36 months of temporary health care coverage through the Department of Defense Continued Health Care Benefit program. Eligible biological and adopted children of the service member may receive TRICARE benefits up to age 21 (or age 23 if enrolled in college)
- Spousal and child support — Each military service has policies requiring service members to support family members upon separation in the absence of an agreement or court order. These policies are designed to be temporary. A commander’s authority is limited without a court order.
Division of Military Assets
- The Thrift Savings Plan: Service members have the option to contribute to a Thrift Savings Plan during their active service. The TSP is a retirement savings plan, much like a 401(k) plan or an IRA. Many people overlook this asset when going through a divorce. This TSP can be divided between the parties. It can also be given to one party in exchange for some other asset. The service member’s TSP statement provides information about the current value of the TSP account.
- The Survivor Benefit Plan (SBP): A service member can buy a death benefit, called the “Survivor Benefit Plan” (SBP), when they retire. The person named as the “beneficiary” of the Plan – usually a spouse or former spouse – will get ongoing payments after the service member dies. Without SBP coverage, the pension payments end when the service member dies. The court can require SBP coverage upon divorce.
- Can VA disability pay be divided in a divorce? No. The law is clear on that, and Congress has spoken. The Uniformed Services Former Spouses’ Protection Act states that VA disability compensation payments are not subject to property division upon divorce. The same is true to a large extent with military disability retirement payments. Payments for the latter occur when a servicemember is declared unfit for duty.
How Does the Military Connection Affect Child Custody and Child Support?
All 50 states have at least one provision in their child custody laws protecting service members’ custody rights. Separations caused by military duty do not affect custody decisions. The protections offered by states differ, but all have at least one of the following provisions:
- Anticipated absences due to military service should not be used to modify custody orders.
- There should be no permanent orders altering existing custody arrangements while the military parent serves overseas.
Service members are required to provide adequate child support for their children. Each of the services (except the Air Force) has rules on how much the parent should pay. However, the final amount of child support is determined by state law, not military rules.
It is ordinarily based on the total entitlements (that is base pay, Basic Allowance for Housing, Basic Allowance for Subsistence, and any special pays) of the servicemember. Generally, once the amount of child support has been set by a court, only a court can change it.
Protections For the Non-Military Spouse
The “Uniformed Services Former Spouse Protection Act” is a federal law that provides certain benefits to former spouses of military members. Some former spouses who have not remarried may receive medical, commissary, exchange and theater privileges under the Morale, Welfare and Recreation program. To be eligible, the non-military spouse must meet the 20/20 test (described below).
After a divorce, the non-military spouse has two possible options with regard to health insurance:
- The first option is no-cost coverage under TRICARE medical coverage. To qualify for TRICARE, the parties must have been married for at least 20 years during 20 years of the service member’s active service. This is sometimes called the “20/20/ rule” (20 years of marriage, 20 years of service). If the 20/20 rule has almost been reached, this could be a good reason to ask the court to hold off finalizing the divorce until the 20/20 rule is met. Lifetime TRICARE coverage is dependent on the former spouse remaining unmarried. If the former spouse remarries, they will lose TRICARE coverage permanently.
- A former non-military spouse who is not eligible for TRICARE may buy conversion health coverage. This is called the “Continued Health Care Benefit Program” (CHCBP).The former spouse who buys CHCBP may be covered for up to 36 months after the date of divorce if they were covered by TRICARE or TAMP (Transitional Assistance Management Program) on the day before the divorce from their military spouse. CHCBP coverage may extend to up to 48 months after the divorce if the former spouse satisfies the 20/20/15 rule. There are a number of rules that have to be fulfilled before the non-military spouse can access CHCBP
How Can a Military Lawyer Help My Claim?
Military divorces can be quite complex and may require the assistance of a professional. Divorce lawyers have specialized knowledge of the various family law issues and hurdles that couples face in such situations.
While they may not always be military personnel themselves, they will have experience in dealing with the types of matters that are common in a military divorce situation.