Military divorce differs from civilian divorce in many ways. For example, when active members of the military—or their spouses—file for a divorce, they are subject to special and unique circumstances that civilians don’t have to deal with. When filing for a divorce, there are several elements that the military influences that you need to consider. Including:
- The Servicemembers Civil Relief Act (SCRA)
- Where the divorce can be filed
- Child custody and visitation
- How support is calculated
If you are in search of legal advice, please contact The Carlson Law Firm for a free consultation with a qualified Military Divorce Attorney to discuss your legal options.
Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act (SCRA) is a federal law that can affect your divorce or child custody case in many ways. The SCRA protects servicemembers from unexpected circumstances at home so that they can focus on their missions abroad. Because of this, the SCRA allows servicemembers to get a delay in any court or agency proceeding that might affect their relationships with their children.
While the SCRA is good for servicemembers, it can be frustrating for non-military spouses if servicemembers delay proceedings. However, the SCRA protects servicemembers from courts issuing permanent decisions until they can arrange to be there. Courts must balance the rights of military and civilian spouses.
The SCRA includes other benefits for servicemembers including preventing landlords from evicting you, stops foreclosures and several more protections.
Where Can I File My Divorce?
For many military spouses, the difficult decision to divorce may arise in a state where you have just moved. In some cases, one spouse may have moved back to the state they are originally from. However, when an active duty military spouse is involved, both parties must be conscious of where the divorce is filed. Courts need to establish jurisdiction over you and your spouse. Otherwise, your divorce won’t be valid. While this is true for every divorce, federal law only makes court orders relating to military retirement plans enforceable if special jurisdictional requirements are met.
When you file for divorce, there are three points you can meet to establish jurisdiction. You can file in a state where:
- The military spouse lives;
- The military spouse is a resident; or
- You and your spouse must agree to the state.
It is important to remember that the state where you married is irrelevant to your divorce. Only the state laws where you file will govern your military divorce.
Active Duty Child Custody and Visitation
Much like the divorce itself, state law determines child custody and visitation. But active-duty families face unique challenges that civilian families don’t. For example, active duty servicemembers may receive orders that station them at a base in a different state or deploy to various parts of the world. This can put a strain on existing arrangements and create stress for parents and children.
If your custodial agreement is already in place but doesn’t address military relocation, you have the option of working with a court and the other parent to modify the order appropriately. Keep in mind, these arrangements are generally subject to individual state laws. Other things to consider when filing a military divorce:
- Your state’s custody and visitation laws are the guidelines for a court’s determination when you request permission to relocate with your child.
- Some states may require you to show how the move will benefit the child.
- Some states prohibit relocation without compelling circumstances.
Deployments can be disruptive to children. In the past, military service has influenced the courts. Courts have looked at servicemembers as unfavorable primary caretakers because of their military status. However, lawmakers in many states have attempted to pass laws that require judges to consider the best interests of the child over a parent’s military status. The goal is to prevent military parents from losing custody of their children simply because they deploy. Many states have had difficulty passing these laws, but the SCRA does help to delay any court action during deployment. Additionally, the military requires servicemembers to create a family care plan after a divorce that their commanding officer must approve. These plans should be updated annually and must not interfere with any other legal documents, such as divorce decrees.
How is Military Divorce Support Calculated?
Active-duty servicemembers are legally required to support their children just like anyone else. Because military paychecks differ from civilian checks, it is sometimes challenging to determine what a servicemember’s actual pay is. If children are present, in order to determine what you or your spouse should pay for child support, figure out the active duty servicemember’s base pay, what they are paying for your child’s health insurance and/or work-related daycare.
In Texas, for example, once you know all of the above information, you can plug it into the Attorney General of Texas’ Monthly Child Support Calculator to get an idea of what you can expect.
Generally, two sets of laws affect military divorce and spousal support. As mentioned before, the first is the state where the divorce takes place. The second is the Uniformed Services Former Spouses Protection Act (USFSPA).
While state law controls most aspects of the divorce, the USFSPA is a federal law that requires the military to accept the state’s statutes on issues like child support, alimony, military pay and pensions. Additionally, the USFSPA allows the military to classify military retirement pay as property instead of income. The USFSPA requires that the couple’s marriage last for a specific amount of time in order for the spouse to be eligible for certain benefits. For instance:
- Former spouses can receive a portion of the service member’s retirement pay if the couple’s marriage lasted at least 10 years and the service member performed at least 10 years of creditable military service.
- Former spouses can continue accessing military benefits (healthcare and commissary) if the couple’s marriage lasted at least 20 years and the servicemember performed at least 20 years of creditable military service.
In both child support and spousal support, the military requires servicemembers to meet their obligations described in the divorce decree or court order. When a servicemember does not meet those obligations they may face military discipline. Each branch of the military requires servicemembers to pay their debts and support their dependents. Servicemembers who fail to meet their duties may face a court-martial. Specific possible violations include:
The Carlson Law Firm Can Help
We suggest that anyone looking to file for divorce first speak with a qualified family law attorney, as each situation is different. Our firm has the special knowledge needed to help you navigate through the difficulties of a military divorce. Divorce is difficult enough. But with a qualified attorney from The Carlson Law Firm on your side, you can be sure your rights and the rights of your children will be protected during this difficult time. Contact our firm for a free consultation with one of our military divorce attorneys. We are available 24/7.