The process of getting a divorce for military personnel is basically the same as it is for civilians. The laws of the state the divorce petition is filed in govern the process, leaving the military’s authority limited. In general, the military considers divorce and separation to be a private civil matter, but there are a few additional things you need to know.
If considering divorce when one or both of you are in the military, you should read the Uniformed Services Former Spouses’ Protect Act (USFSPA), a federal statute that guides the military to accept state statutes when addressing issues such as child support, spousal support and military retirement pay/pension. It also allows the states to classify military retirement pay as property, not income. More recommended reading is the Servicemembers Civil Relief Act (SSCRA).
The SSCRA gives military personnel legal protection from lawsuits, including divorce proceedings, so they can “devote their entire energy to the defense needs of the Nation.” If you or your spouse is on active duty in a remote area, permanently stationed overseas, or deployed in a time of war, a court may delay proceedings accordingly. Just serving a spouse with a petition for divorce can get complicated if you or they are deployed overseas, so be aware that it may take longer to go through the process of divorce when military personnel is involved.
Personnel and family members do have access to free legal services through the Judge Advocate General (JAG), but here again, JAG is limited in what it can do and any advice given may be general and not specific to the divorce laws of the state you are filing in. If you need an attorney, it’s best to retain a civilian attorney, but one with experience in military-related family law, who will be knowledgeable about the USFSPA and SSCRA.
Residential Requirements for Filing
Most states have residential requirements that must be met before filing for a divorce in that state. But in many states, those requirements are relaxed for active duty personnel stationed in that state. This is something you need to find out before attempting to file. You also have a choice of filing in the state where the petitioner or plaintiff (spouse filing for divorce) lives; or in the state where the service member is stationed; or where the service member is a legal resident.
Laws can vary from state to state, so where you file is important. Rebekah Sanderlin’s article for Military.com, “Military Divorce: Why Where You File Matters,” explains some of the reasons why it’s important to consider which state you file your petition in.
Military Retirement Pay
While the USFSPA allows state courts to treat disposable retirement pay as property rather than income, it does not provide a formula for calculating the appropriate division of that military pay when it comes to divorce. The state courts will have a method for calculating an equitable division of pay, but no more than 50 percent of the retiree’s pay can be awarded to a spouse, with a combined amount deducted of 65 percent if child support is also taken from the pension. Your divorce decree must read what is being given and the Defense Finance and Accounting Service (DFAS) has very specific rules when it comes to the wording in the decree.
DFAS states the following: “The major reason we reject applications for payments under the USFSPA is that the language dividing retired pay is faulty. The USFSPA states that for a retired pay as property award to be enforceable, it must be expressed either as a fixed dollar amount or as a percentage of disposable retired pay. For a fixed dollar amount award, a monthly amount needs to be provided in the court order. If a fixed dollar amount award is used, the former spouse would not be entitled to any of the member’s retired pay cost of living adjustments (COLAs). Because of the significant effect of COLAs over time, it is infrequent that an award is stated as a fixed dollar amount. The more common method of expressing the former spouse’s award is as a percentage of the member’s disposable retired pay. This has the benefit to the former spouse of increasing the amount of the former spouse’s award over time due to periodic retired pay COLAs.”
You can download the entire document to read on “Dividing Military Retired Pay – DFAS Home.” And, of course, a spouse will not be entitled to the retirement pay specified in a divorce decree until the retiree applies for it, so the decree should also include a time frame stating when the retiree will apply for benefits.
For an ex-spouse to receive direct payments through DFAS, the couple must have been married 10 years, overlapping with 10 years of service. If you do not qualify for direct payments through DFAS, you are still entitled to your portion of the retirement pay. If this is the case, you would need to make sure how you will be paid is clearly laid out in the divorce settlement agreement.
There are three methods used to determine the amount an ex-spouse is entitled to, with the length of marriage in play. Net Present Value is generally used when a spouse wants a buyout upfront. Deferred Distribution is calculated at divorce, then received when the service member retires. And, Reserve Jurisdiction, the most commonly used method, calculates the ex-spouse’s share at retirement.
Thrift Savings Plan
A military thrift savings plan is treated like a civilian 401(k), but specific requirements must be met by the court order that are different from a retirement plan division order civilians would use. To learn more about these differences, go to the Thrift Savings Plan website.
Survivor Benefits Plan
Do not make the mistake of thinking that if you were the beneficiary of the Survivor Benefit Plan when you were married that you will remain so. You will not, as it is considered an exclusive benefit and must be addressed in your divorce settlement agreement.
Military ID Cards and Benefits
Military ID card privileges are granted by congressional law to family members and cannot be taken away, confiscated, or revoked by the military member spouse. Any military personnel who does so, can be charged for larceny under the provisions of Article 121 of the Uniform Code of Military Justice (UCMJ).
Once divorced, a nonmilitary spouse will lose ID card privileges, with two exceptions:
- If a former spouse was married to military personnel for at least 20 years, the military member performed at least 20 years of service creditable for retired pay, and there was an overlap of the marriage and the military service of at least 20 (20/20/20), the ex-spouse is eligible for full medical, commissary and exchange privileges. Should the spouse receiving these benefits remarry, those privileges will be terminated, but if that subsequent marriage ends in divorce, they will be revived.
- If married for at least 20 years, the military member performed at least 20 years service creditable for retired pay, and there was an overlap of the marriage and the military service of at least 15 (20/20/15), the ex-spouse qualifies for medical benefits for one year from the date of decree.
In both these cases, if the nonmilitary spouse is covered by an employer-sponsored health care plan, medical care will not be extended to them. You can read more about the details in Ron Powers’ article titled, “Military Divorce and Separation — Lawyers, ID Cards, and Housing” posted on About.com US Military.
Spousal and/or Child Support
In the military, child support and/or spousal support are considered a duty, and wages can be garnished to ensure payment, though child support may not exceed 60 percent of the military member’s pay. If court orders are not followed pertaining to child support, an ex-spouse of a military member can go to the military member’s commanding officer.
On-base housing for military families is a benefit issued to the military member, but the member cannot evict any of his/her family because of separation or divorce. That authority rests with the installation commander. When a separation is needed, the member is generally ordered to move to the barracks, a free billet for military members that cannot be provided for spouses.
Yet, military housing can only be provided for military members and they must reside there with family members. So, when the member no longer resides in the family housing due to separation or divorce, the unit must be vacated within 30 days and the military will not pay for the move.
Do Your Research and Be Prepared
As in any divorce, there are many decisions to be made and the place to start is by gathering information to make sound choices. There are many good articles on divorce provided by Military.com or About.com US Military. DivorceNet.com has a lot on military divorce as well, such as: “Differences Between Military and Civilian Divorce” and “Military Medical Benefits” — you will find a whole list to choose from.
Taking the time to do your research on the military and divorce will make the entire experience easier. This is only one place to start, and being well-informed will help you put into place the long-term solutions you and your family will need to have a healthy post-divorce life.