Military Divorce Laws

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Military divorce laws are not different from the laws of a civil divorce. In fact, a service member or the spouse has to go through the same procedure like the civilians would, during the dissolution of a marriage. However, certain aspects of a divorce like retirement benefits, residency requirements and child custody matters are handled differently in a military divorce. The Uniformed Services Former Spousal Protection Act governs these matters. The direct jurisdiction takes place according to the state laws. However, the guidelines for these matters are issued by this Act.

Military Divorce Laws regarding Residency

A majority of states in the U.S. permit a military member or their partner to file for divorce at the location where the military member is stationed. It is not ascertained whether either of them should be a legal resident of the state. If either or both the couples are in military they can file a divorce in:

  • The state where the military member is a legal resident, or
  • The state where the military member is stationed, or
  • The state where the spouse who is filing the divorce resides.

When the petition for divorce is filed in a particular state, the laws of that state govern the child support, child custody and property distribution issues. Hence, the military members are given the advantage of filing a divorce case in a stationed state other than the state in which they are residing.

Military Divorce Laws regarding the military benefits of a former spouse

A former spouse of a military member is eligible for all the benefits including complete exchange, commissary and medical privileges as per the rules of the USFSPA (Uniformed Services Former Spousal Protection Act). However, it is checked whether the following conditions are fulfilled.

  • The duration of the marriage is minimum 20 years
  • The military member has completed minimum 20 years of service to be eligible for retired payment
  • There should be a minimum a 20 year overlap between the military service and the married life of the military member.

Thus, the spouses who separate from their partners within less than twenty years, would not be benefited by the military advantages. Also, if the service member has opted out of the service before the completion of a minimum period of twenty years, military benefits are not allowed to such a member. The case where both spouses serve the county and are active military servants the same rules will apply. In case of remarriage of the spouse, such a spouse is not eligible for the benefits from the date of the second marriage. However, if such a remarriage terminates in a divorce, the benefits are revived.

Role of USFSPA

The USFSPA governs military pension. As per this Act, a part of the military retirees pay is directly paid to the former spouse. Certain base privileges are also extended to some former spouses.

There is no formula to compute the precise division of the retired payment of the military member. The Act permits the state courts to consider the disposable retired pay as a property of the military member and the spouse, or as a sole property of the military member. In this regard, the laws of the state court may be followed. The state laws determine the precise bifurcation of the retired payment of the military member. It is a fact that a majority of state courts have a special formula to compute how the military pay would be divided.

It must be kept in mind that the USFSPA does not indicate that because an individual is married to a military member, the individual would get a share of the retirement benefits. This Act does not have a rule regarding splitting of military retirement pay. The state courts award a share of the military member's retirement payment to the spouse. The courts look up to the retirement payment just like property division in a civilian divorce. However, it is mandatory, that the divorce decree must mention the part of the retirement payment to be given to the spouse as a percentage. DFAS (Defense Finance and Accounting Services) is extremely strict regarding the wording of the Divorce Decree.

Often, many people are of the opinion that military divorces are complicated than the civil divorces. It is necessary to clarify that the procedure for military and civil divorces is one and the same. The only difference is the governance of the USFSPA, as mentioned earlier..The state laws, however, give the final verdict of a divorce and also resolve other issues related to a divorce.

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