Military Divorce

A military divorce can be more complicated than a civilian divorce simply because one of the spouses is an active or retired military service member and, therefore, special rules come into play. These rules concern:

  • Timing of the divorce proceeding
  • Service of the Dissolution of Marriage Petition
  • Division of military retirement pay
  • Child custody and support

Also, unlike a civilian divorce, if a service member does not follow military regulations or court orders concerning child support, the ex-spouse can complain to the service member’s commanding officer.

What follows are some of the other issues that may come into play in a military divorce:

Servicemembers Civil Relief Act (SCRA)

Divorce ProceedingsThe SCRA is a federal law that shields active service members from legal proceedings, including divorce,so they can perform their military duties. To that end, SCRA authorizes the court to delay divorce proceedings while the military member is on active duty overseas and for three months after the end of that active duty service.

Florida Residency Requirement

Before a military couple can get a divorce in Florida, one of the spouses must have lived in Florida for six months or been stationed here for at least six months.

Division of Military Retirement Pay

Unlike civilian pensions, both Florida and federal laws govern the division of military retirement pay in a divorce. This is probably the most complicated issue in a military divorce, and there is a lot of misinformation on the Internet about the division of military retirement pay. Given that the military retirement pay is probably the most valuable piece of the marital estate, it is crucial that divorcing military couples seek legal guidance on this issue, including:

  • State and federal laws regarding valuation of the military retirement pay
  • State and federal laws regarding the division of the military retirement pay
  • Federal rules regarding awards to the receiving spouse
  • Special considerations regarding the proper wording of the divorce decree

Child Custody/Time Sharing and Support

A military parent risks losing custody of a child when they are deployed. The military parent may only have to relinquish custody temporarily, but sometimes they face a custody battle when they come home. Consequently, it is often best to seek the advice of an attorney before deploying.

The court will determine matters involving time-sharing or custody with an eye towards the best interests of the child.

Even in the absence of a court order, all service members have a legal obligation to support their children (and spouses). Consequently, their income may be garnished to make sure they do that. Child support cannot be more than 60% of a service member’s income and allowances.

The 20/20/20 Rule

Under Federal law, an ex-spouse of a retired military veteran may recover full military benefits, including medical care, and commissary and PX privileges, if three requirements are satisfied:

  • The ex-spouse and the retired veteran must have been married for at least 20 years;
  • The retired veteran must have served for at least 20 years; and
  • The 20-year marriage must have coincided with the 20-year military service period.

For example, if a Soldier with two years of service marries, divorces after 20 years of marriage, and does not retire for another five years, then that Soldier’s spouse would qualify for full military benefits under the 20/20/20 Rule because the 20-year marriage overlapped with 20 years of the Army member’s military service.

The ex-spouse must not re-marry or have employer health care coverage to qualify for full military benefits.

The 10/10 Rule

Many people misunderstand the meaning of the 10/10 Rule (or “10-Year Rule”) as it applies to a military divorce and the recovery of military retirement pay. Some think that the couple must be married for at least ten years before the ex-spouse can receive a portion of the military spouse’ s retirement pay. In actuality, the first “10” of the rule means that the couple must have been married for at least ten years.  The second “10” of the rule means that during the marriage, the military spouse must have served ten years that counts towards military retirement.

If these conditions are satisfied, then Defense Finance and Accounting Services (DFAS) may directly pay the ex-spouse his or her share of the military spouse’s retirement pay. Using DFAS to administer retirement pay can be good for both parties. DFAS will deduct taxes and other fees for the receiving spouse, and the military spouse will not have to make out a check payable to the ex-spouse every month.

Contact a Military Divorce Lawyer

Unique issues can come up in a military divorce. Understanding these issues can lead to better and fairer outcomes. A knowledgeable military divorce lawyer can guide you through the divorce process and help protect your rights.