Military Divorce and Separation

Congressional Protections for Service Men and Woman

Silver wedding rings and gavel
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Military personnel has some Congressionally legal protection from divorce proceedings not granted to the public at large. Under the Servicemembers Civil Relief Act, 50 UCS section 521, Congress has acted to protect the legal interests of servicemen and women from lawsuits including divorce proceedings to enable them "to devote their entire energy to the military needs of the nation."

In the discretion of the court, the legal proceeding may be stayed (delayed) for the time the service member is on active duty and for 60 days thereafter.

The Servicemembers Act also prevents the active duty serviceperson from being held in "default" in some circumstances for not responding to the divorce proceeding. If a party is in the military, the court may appoint an attorney to represent the serviceperson, but only for the default proceedings and not for the divorce action itself.

Does the Soldiers and Sailors Relief Act mean that you can simply ignore the divorce papers you have been served with?

No. You will want to make sure the court is aware that you are on active duty. Furthermore, the stay of the divorce proceeding is discretionary with the court. You may have to hire an attorney to make the motion to the court to delay the hearing. Sooner or later, even if a stay is granted, you will have to deal with the divorce proceedings.

Furthermore, if a divorce between you and your spouse is inevitable, it may be in your best interest to obtain the divorce as soon as possible. For instance, the portion of your military retirement that your spouse could claim will only increase with time.

When stationed in one state, but legally residing is in another, if divorce is initiated in the State you're stationed in, can the court divide your Military retired pay?

It depends. If you initiate the divorce action, then the answer is probably yes. If your spouse initiates the divorce action, you may have some federal protections. The Uniformed Services Former Spouse Protection Act, (USFSPA) spells out the conditions when a state may assume jurisdiction over a member's military retirement pay. Basically, a court may not treat the disposable retired pay of a member as community property unless the court has jurisdiction over the member by reason of his residence, other than because of military assignment, in the territorial jurisdiction of the court; his domicile in the territorial jurisdiction of the court; or his consent to the jurisdiction of the court.

Consent and jurisdiction are tricky issues, and you should consult an attorney who is knowledgeable of the provisions of the USFSPA before responding to any petition.

We've only been married to our spouse for nine years. The court can't divide our future retired pay, can it?

This is a common misconception. The "10 Year Rule" in the Uniformed Services Former Spouse Protection Act (USFSPA), only restricts direct payments by the Defense Finance Accounting Service (DFAS) to the former spouse. Depending on the laws of the particular state, the court may award a monetary "offset" representing a portion of your military retired pay to your former spouse, regardless of the length of the marriage.

If the DFAS does not make the payments directly, the member will still be required to comply with the judgment of the court. Finally, the only portion of the retirement benefits considered community property and subject to the division are those earned during the marriage and while in the service.

Can VA Disability Pay be divided as community property?

No, this benefit will not be directly allocated to the non-member spouse. However, the court may consider the Disability Pay in determining child support, maintenance and property and debt division.

What is the best way to find an attorney to represent us?

Because of the various protections available, it is best to find an attorney who is conversant in military-related divorce matters. Furthermore, you need to find an attorney who is licensed to practice in the state where the divorce action is occurring. The best resource may be a referral from a friend or family member. Another way is to call your local Bar Association and ask them if they have a list of local attorneys who practice in military-related divorce matters. Many lawyers offer a free initial consultation, and you should be able to make a choice after consulting with a few.

What other protections are there for those serving in the military

The other federal protections for service men and woman are numerous and range across a broad range of issues including jurisdictional issues (the proper state for the divorce proceeding to be held) and protections concerning military retirement and disability benefits.

Disclaimer: The above information is for general use only and should not be relied upon for legal advice. You should consult an attorney licensed to practice in the state where your legal matter is located.