Difficult Divorces: Separating While in the Military

How Military Divorces Are Different

The nature of military life introduces new complications into the already complex divorce process. Military servicemembers and their families tend to move around, and their current base may not be in the same state as their legal residence. Additionally, if one person is deployed, serving divorce papers and completing the divorce process is made more difficult. Furthermore, military divorce proceedings involve state and federal laws, as well as military codes.

Other issues that arise when one or both divorcing parties are in the military include:

  • Asset division
  • Division of benefits and pensions
  • Child custody
  • Parenting plans & visitation
  • Residency determinations

The decision to separate and divorce is never easy. If you or your former partner were military servicemembers, the divorce process is even more complicated. If you are considering divorce, whether you are a military servicemember or a civilian spouse, you should work with an experienced lawyer for military divorce. A skilled attorney can help you navigate the divorce process and provide you with the reliable legal counsel you need to move through the process as smoothly as possible.

Legal Separation for Military Servicemembers

When a couple wishes to separate but does not want to divorce, they can legally separate instead. A legal separation, like divorce, is a court order and follows much the same process. Some reasons couples decide to separate instead of divorce include religious prohibitions against divorce and the need for a former spouse to have access to their military health insurance benefits.

However, a legal separation prohibits you from remarrying because, legally, you are still married, despite the official separation. If you want to remarry, you must obtain a legal divorce.

The USFSPA

The Uniformed Services Former Spouse Protection Act was passed in 1982 and provides some financial protections for former military servicemembers' former spouses. When dividing marital property, the USFSPA allows military disposable retired pay to be classed as marital property. Therefore, it enables some former spouses to be awarded a share of this retired pay as part of their divorce settlement. The payment may come directly from the servicemember or may be distributed directly from the Defense Finance and Accounting Service (DFAS).

The 10/10 Rule

There are some restrictions to the USFSPA, and this is where the 10/10 rule comes in. As a former spouse of a military servicemember, to receive payment directly from the DFAS, you have to pass the "10-year test." You must have been married for at least ten years, during which the servicemember performed at least ten years of creditable service. You also must obtain a court order to receive direct payment from the DFAS.

The Servicemembers Civil Relief Act (SCRA)

The SCRA was enacted in 2003 and offers important benefits and protections to active duty military servicemembers. This act serves as a revision and expansion of the 1940 Soldiers' and Sailors' Civil Relief Act. It is designed to provide protections for servicemembers who, because of the nature of their military duties, are vulnerable to harm and exploitation. Under the SCRA, military service is defined as full-time active duty in the Army, Navy, Air Force, Marine Corps, and Coast Guard, or reservists on federal active duty, or National Guard members on federal orders lasting more than 30 days.

What the SCRA Means for Your Divorce

The act provides benefits and protections across a wide area of circumstances, including rental agreements, security deposits, evictions, credit card interest rates, mortgage interest rates and foreclosures, and civil judicial proceedings. The SCRA civil judicial proceedings have a direct impact on family law matters and divorce proceedings.

The SCRA offers two key benefits for servicemembers who are going through a divorce:

  • Protection against default judgments when the servicemember has not made an appearance because of their military service, stating that no default judgment may be entered until after a court-appointed attorney has been assigned to represent the interests of the servicemember
  • Stay of civil court proceedings for 90 days if the servicemembers court-appointed attorney is unable to contact the servicemember or when there is a defense to the legal action in question that requires the serviceman to be present

To find out how the SCRA impacts your divorce case, call the Law Office of Greg Quimby, P.C. We are prepared to discuss the particulars of your situation and help you determine your best course of action.

For more from our Difficult Divorce series, read this blog post on splitting up with a narcissist.

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