Married couples where one person is in the military have the same legal rights during divorce proceedings as non-military couples. While you have the same rights, there are a few factors that will affect those in the military in a divorce.
Active Duty or Stationed Overseas
Divorce will take longer for anyone on active duty or that is stationed overseas permanently. Some states have adopted relaxed laws in respect to residency requirements for military personnel undergoing a divorce.
These states make it easier for active duty personnel that are stationed in the respective state to get divorced.
Responding to a divorce filing when divorce papers are served requires a formal response in a timely manner. A current service member has the legal right, under the “Servicemembers Civil Relief Act,” to request what is called a “stay.”
A “stay” puts a hold on the divorce if the service member cannot withhold their duties due to responding to the filing. The “stay” is granted for 90 days, and an extension may be granted to extend the “stay” for an additional 90 days if needed. A “stay” can continually be granted in the event that the member’s duties would interfere with his or her participation in the divorce proceedings.
Retirement Pay / Pension
Direct retirement payments in the military are paid by the Defense Finance and Accounting Service. Retirement pay is only available to an ex-spouse if:
- The couple was married for 10 years during service.
If the couple was married for 20 years but only 9 years while in service, direct retirement payments would not be provided to the ex-spouse.
However, being ineligible for direct payment does not negate a portion of retirement benefits going to the ex-spouse. A divorce settlement can split retirement and pension benefits, but the maximum pay cannot exceed 50% of the military retirement pay.
Child and Spousal Support
Service members have a legal responsibility to support their children. All military personnel must comply with support, custody and visitation orders. Unlike civilian divorces, military personnel can be punished for failing to provide support as decided by the state.
Failure to pay support can lead to separation from military service.
Understanding the Uniformed Services Former Spouses’ Protection Act
The USFSPA states, under federal law, that the state that the military member currently resides will have the power to divide the military pension given in a divorce. What does this mean to you?
This means that if a military member is located in New Jersey and a divorce is filed in Kansas, the Kansas court may not be allowed to divide military pension.
However, if a military member agrees to the division of their own pension, they will be able to give consent to the court (in Kansas in this case), and the division of the pension would be valid. Refusal to give consent means that the pension division will need to be done in the military member’s current state of residency.
While most military branches and bases offer legal assistance, they will not help with a divorce.
There are options for an ex-spouse to receive continual healthcare benefits (under certain conditions). A service member can buy into the Survivor Benefit Plan (SBP) that would transfer their pension payments to his or her spouse or ex-spouse after death.
The Micklin Law Group, LLC is a New Jersey law firm specializing in family law, estates, and military divorce. Attorney Brad Micklin was recently named to The National Advocates list of Top 100 attorneys from each state. To set up a consultation, call 973-562-0100.