In many ways, a military divorce looks like any other kind of divorce. All the major issues of divorce are the same: custody, child support, spousal support, division of property, and division of debts.
But there are special federal and state laws that must be accounted for. These touch on three distinct areas:
- When, how, and where the divorce may be filed.
- The division of retirement benefits.
- The ability of the non-military spouse to hold on to certain military-granted privileges and benefits.
Thus, you and your attorney are going to have to work through several questions to determine your strategy for the divorce.
Can you and your spouse obtain this divorce in Pennsylvania?
Military couples can divorce in Pennsylvania if they’ve been domiciled in the state for six months, even if the active duty spouse spends most of that time on deployment.
If your spouse is deployed, he or she may request a 90 day automatic stay of the proceedings to give him or her time to gain leave to come back and deal with the divorce action. Judges may extend this stay at their discretion.
You must also serve the spouse in person, which can be hard if he or she is overseas. There is a way around this, but it requires your spouse to sign an affidavit acknowledging the divorce action.
Once you’ve met this requirement, you can file for divorce. Your complaint will have to list your spouse’s service record, and your spouse must be personally served with the divorce complaint. This is a requirement under the 2003 Service Member’s Civil Relief Act, or SCRA.
How long have you and your spouse been married, and how long did the military spouse serve?
There are two rules to keep in mind here. The first is the 10/10 rule.
The 10/10 rule will entitle spouses to a portion of military retirement pay if they’ve been married for ten years, and if the member was involved in retirement-pay eligible service for at least ten of those years. For example, if you were married 15 years, but you came into the marriage on the 5th year of your spouse’s military service, then you could not receive the spouse’s retirement pay as part of your divorce settlement.
The second rule is the 20/20/20 rule. It’s similar to the 10/10 rule, but with a 20-year requirement. If you meet the conditions of the 20/20/20 rule then the spouse retains all of the privileges he or she would have had if the couple had remained married, such as access to Tricare, access to the commissary, access to the exchange, and access to eligible retirement funds.
Is the spouse eligible for retirement pay?
In most circumstances the non-serving spouse can only get retirement pay via court order if the serving spouse is also eligible. There is one exception.
Under the conditions of the Uniformed Services Former Spouse’s Protection Act (USFSPA) a former spouse can receive retirement benefits if their serving spouse lost their own benefits due to “the abuse of a spouse or dependent child.” These benefits terminate upon the remarriage of the former spouse, or upon the death of the other party.
These questions only begin to touch on some of the complications that can arise when you’re in the middle of a military divorce. Military divorces require you and your lawyer to navigate through complex state and federal laws.
Many of the provisions of your divorce, such as child support or retirement pay, will be actively enforced by the DoJ, which means every portion of your divorce process and decree must be airtight to avoid trouble. And if you are the active duty member, custody issues can get even more complex.
Whether you are the active duty service member or your spouse is, you’re going to need help. A civilian divorce should never be a DIY affair, and a military divorce definitely should never be a DIY affair.