According to data provided by the Pentagon to Military.com, about 21,290 of 689,060 married troops divorced over the course of fiscal 2017. Divorce is never a pleasant process to go through. It is usually painful, messy, and complicated. However, if you are an active duty American military personnel or if you are currently married to one of these individuals who could be stationed anywhere around the world, considering a military divorce carries a whole other layer of complexity.
Service members and their spouses have certain rights and responsibilities related to their military status, many of which vary from state to state. In the process of divorce, you may bump up against certain experiences that are different from civilian divorce proceedings. Some of these could include subjects as basic as knowing where to file, or as difficult as coordinating child custody. You will also have to navigate differing process timelines, retirement/pension division, base privilege access and more.
1. Where Should You File Your Military Divorce?
The typical process for filing for divorce requires you to file where you live. This is a simple determination for civilians, as they typically live, work, and own the majority of their property all in a single state. However, it is not uncommon for a military couple to have grown up in one state, gotten married in a different state, own property in a different state, and be currently living stationed in a foreign country.
Mark E. Sullivan is the author of The Military Divorce Handbook: A Practical Guide to Representing Military Personnel and Their Families. In this book, Sullivan recommends that when deciding where to file for divorce, “people should consider where they vote, pay state taxes, have a banking account, were issued driver’s licenses and car titles, go to church, qualify for in-state college tuition or own property on which they pay real estate taxes, as these are all factors in establishing residency. The state where most of these events took place is the state where they should file.”
Purely from a financially practical standpoint, people should also keep the cost of traveling to the state they choose to file in, in mind. Filing documents, meeting with lawyers, taking time off work, and attending trials (if necessary) can become very expensive.
Laws can vary from one state to another and where to file can make a big difference in how a divorce will proceed and in both parties’ situations after the divorce is final, he said. An attorney who specializes in military divorces can help you navigate these unique legal issues.
2. What is the Impact on Child Custody?
Divorce is difficult enough. But when it comes to child custody disputes, “difficult” hardly touches it. Even though service members typically spend three years at any one assigned location, the truth is, a military service member can be deployed at any time and the individual generally has little (if any) control over where they will be stationed. Unfortunately, this frequent relocation can create the appearance of an unstable environment for children and since the aim of the courts is to settle on a custody arrangement that is in the best interest of the child/children, custody can be a difficult thing for a service person to secure. For this reason, it is important that you choose to work with a divorce attorney who is familiar with the legal issues that specifically affect military divorces.
3. How Long Will It Take?
Another unique component to the divorce process for military couples, is the chance that one of you is on active duty in a remote location or stationed overseas. This situation could create a significant increase in the length of time required to initiate and finalize divorce proceedings. Service members may apply for a stay of divorce proceedings via the Service Members Relief Act, which could provide an additional 90 days or longer for divorce proceedings to continue, due to the potential material effect on their ability to participate in the process. To qualify, the service member must demonstrate:
- Active duty status (which causes…)
- The inability to appear and defend against divorce.
- An anticipated future date when they will be able to appear, and
- A statement from their commanding officer that validates the member’s inability to appear due to unauthorized leave during that length of time.
Attempting to circumvent your spouse’s awareness or ability to participate in the divorce proceedings is strongly discouraged. Consult your divorce attorney for appropriate steps to take to ensure the proper steps are taken to avoid unnecessary delays or hiccups in the process.
4. How is Military Retirement/Pension Distributed?
When it comes to direct retirement payments, the service member must have been married for at least 10 years that overlap at least 10 years of credible service. This guideline is recognized as the Pension Benefits 10/10 Rule. These payments are made through the Defense Finance and Accounting Service (DFAS) and the amount conveyable to the spouse is capped at 50%.
Your divorce attorney should be well-versed on the Uniformed Services Former Spouses’ Protection Act (USFSPA), which establishes military guidelines on issues such as military retirement pay/pension, child support, spousal support, and more. They should also be competent in navigating other benefit and healthcare packages.
5. Will I Still Have Access to Base Privileges?
Similar to the Pension Benefits 10/10 Rule, post-divorce base privileges are governed by a 20/20/20 Rule:
- The non-military spouse must have been married to the military spouse for at least 20 years.
- The military spouse must have been in the military for a minimum of 20 years.
- At least 20 years of the marriage must have overlapped 20 years of time spent in the military.
If all three components of the 20/20/20 Rule apply, the non-military spouse is entitled to full base privileges for the length of time that they remain un-remarried.
Special circumstances in military divorces could affect your ability to make good financial decisions that will impact your future financial stability. Your attorney should be able to help you understand when rules such as the 10/10 Rule, the 20/20/20 Rule, and other stipulations may apply.
There Is No “Typical” Military Divorce
There are no one-size-fits-all solutions for military divorce. The above guidelines are not intended to provide specific legal advice to your unique situation. Every case is different. If you are contemplating a military divorce, there are plethora of variables that could come into play throughout your proceedings. For this reason, you should never plan to negotiate your divorce nor sign a settlement agreement without at least consulting an attorney who is familiar with military divorces.