Military Divorce Guide

Military divorces involve unique legal considerations not present in civilian divorces. Whether you're active duty, a veteran, or married to a service member, understanding these special rules is crucial for protecting your rights and benefits. ## Key Differences from Civilian Divorce Military divorces differ in several important ways: - **Servicemembers Civil Relief Act (SCRA) protections** - Active duty members can delay divorce proceedings - **Military pension division** - The "10/10 Rule" and special distribution requirements - **Jurisdiction questions** - Multiple state connections create choice of law issues - **Deployment considerations** - Active deployment can pause or delay proceedings - **Benefits eligibility** - Healthcare, commissary, and base housing access depend on marriage length - **Federal vs. state law** - Military-specific federal regulations overlay state divorce laws ## Who Needs This Guide? This guide is essential if you are: - Active duty military considering divorce - Spouse of an active duty or retired service member - National Guard or Reserve member - Military retiree dividing pension benefits - Spouse seeking to retain military benefits after divorce

The SCRA provides important legal protections for active duty service members, including the right to delay divorce proceedings. ## What is the SCRA? The Servicemembers Civil Relief Act is a federal law that protects active duty military members from civil legal actions that could adversely affect their military service. In divorce cases, this means an active duty member can request a "stay" (postponement) of proceedings. ## How SCRA Affects Divorce **Automatic Stays:** - Service member can request a minimum 90-day postponement - Court must grant stay if military duties materially affect ability to appear - Can be extended with additional requests **Requirements for Stay:** - Must be on active duty or within 90 days of release - Must submit written request with details of deployment/duty - Must state how military service affects ability to participate **When SCRA Doesn't Apply:** - Service member voluntarily appears in court - Service member signs a waiver of SCRA protections - Case involves only financial matters, not custody - Service member is not actually prevented from participating ## Strategies for Spouses If you're divorcing an active duty member: - Work with attorney familiar with SCRA procedures - Document all communication attempts - Consider mediation to resolve issues cooperatively - Plan for potential delays in your timeline

Military pensions are marital property subject to division, but special rules apply for payment and distribution. ## The 10/10 Rule The "10/10 Rule" determines whether a former spouse can receive direct payment from DFAS (Defense Finance and Accounting Service): **Requirements:** - Marriage lasted at least 10 years - At least 10 years of marriage overlapped with 10 years of creditable military service - Court order (not just agreement) divides the pension **If You Don't Meet 10/10:** - Pension is still divisible as marital property - Former spouse receives payment from service member, not DFAS - Service member is responsible for making payments ## How Pension is Calculated **Disposable Retired Pay:** - Only "disposable" portion (after deductions) is divisible - VA disability payments are NOT divisible - Survivor Benefit Plan (SBP) premiums reduce divisable amount **Common Division Methods:** - **Percentage method:** Former spouse receives X% of total pension - **Fixed dollar method:** Former spouse receives specific dollar amount - **Marital share formula:** Fraction based on years married during service **Typical Formula:** 50% × (Months married during service ÷ Total months of service) × Monthly pension ## Survivor Benefit Plan (SBP) Critical decision affecting long-term security: - Provides continued benefits if service member dies - Former spouse must be designated in divorce decree - Service member pays premiums (typically 6.5% of benefit) - Must be elected within 1 year of divorce - Cannot be changed without former spouse consent

Military families often have connections to multiple states, creating complex jurisdictional questions. ## Where Can You File? You may be able to file in: - State where service member is stationed (legal residence) - State where service member claims domicile - State where non-military spouse resides - State where married ## Which State's Laws Apply? The state where you file will apply its own divorce laws for: - Grounds for divorce - Property division rules - Alimony/spousal support - Child custody standards **Strategic Considerations:** - Community property vs. equitable distribution states - Alimony laws vary dramatically by state - Some states more favorable to military pension division - Tax implications may differ by state ## Changing Jurisdiction If service member receives PCS orders during divorce: - Original court generally retains jurisdiction - May need to modify custody orders in new state - Can complicate enforcement of orders

Former spouses may retain certain military benefits depending on marriage length and overlap with service. ## The 20/20/20 Rule (Full Benefits) Former spouse retains full military benefits if ALL of: - Married for at least 20 years - Service member served at least 20 years - At least 20 years overlap of marriage and service **Benefits Include:** - TRICARE health coverage - Base exchange and commissary privileges - MWR (Morale, Welfare, Recreation) facilities - Space-A travel ## The 20/20/15 Rule (Transitional Benefits) Former spouse receives 1 year of transitional TRICARE if: - Married for at least 20 years - Service member served at least 20 years - At least 15 years overlap (but less than 20) **After 1 Year:** - Can purchase TRICARE premium at own expense - Can convert to civilian insurance through CHCBP ## Other Benefit Considerations **Former Spouse ID Card:** - Required to access most base facilities - Must apply within 1 year of divorce - Bring divorce decree and other documentation **VA Benefits:** - Former spouses generally NOT eligible - Dependency and Indemnity Compensation (DIC) may apply if service member dies from service-connected disability **GI Bill Transfer:** - If already transferred before divorce, benefits continue - Cannot transfer benefits after divorce

Military deployments and relocations create unique child custody challenges. ## Custody During Deployment **Temporary Custody Orders:** - Should address custody during deployment periods - Family care plan required for service members with sole custody - Grandparents or other family may receive temporary custody - Must specify when service member resumes custody **Best Practices:** - Create detailed parenting plan addressing deployment - Include communication plan (Skype, phone calls, care packages) - Address mid-deployment returns and leave periods - Plan for unexpected deployment extensions ## Military Relocation (PCS Orders) **When Service Member Has Custody:** - May be able to relocate with children - Non-custodial parent can object but military duty usually prevails - Must weigh best interests of child vs. military requirements **When Non-Military Spouse Has Custody:** - Service member cannot use PCS to force relocation - May need to modify visitation for distance - Consider graduated visitation schedule ## Federal Protections **Servicemembers Civil Relief Act:** - Custody orders cannot be modified during deployment - Service member can request stay of custody proceedings - Post-deployment custody must return to pre-deployment status **Recent Legislative Changes:** - Most states now prohibit using deployment against service member in custody - Deployment cannot be sole basis for custody modification - Temporary custody during deployment doesn't establish new permanent custody

Step 1: Gather Military Documents Essential documents: - Military ID cards - Leave and Earnings Statements (LES) - VA disability rating letters - SBP enrollment information - Military orders (PCS, deployment) - TSP (Thrift Savings Plan) statements ## Step 2: Calculate Marital Portion of Pension Information needed: - Total months of creditable service - Months of service during marriage - Current pension amount (if retired) - Projected pension (if still serving) ## Step 3: Consider Professional Help **Military Legal Assistance:** - Free consultation through JAG office - Can review documents but won't represent in court - Limited to basic advice, not complex cases **Civilian Attorney:** - Essential for contested cases - Choose one experienced in military divorce - Should understand SCRA, pension division, benefits ## Step 4: Address Key Issues **Property Division:** - Military pension (often largest asset) - Thrift Savings Plan (TSP) - VA disability (not divisible but may affect alimony) - Military housing allowance (BAH) **Spousal Support:** - Consider VA disability offset - Tax implications of pension division - Future promotions and pay increases **Child Support:** - Military pay charts determine income - BAH and other allowances count as income - DFAS can garnish directly from pay ## Step 5: Finalize with Proper Orders **Must Include:** - Specific pension division formula - SBP election requirements - DFAS payment instructions - Compliance with state and federal law **Send to DFAS:** - Certified copy of court order - DD Form 2293 (Application for Former Spouse Payments) - Complete within 1 year for SBP election