North Carolina had a divorce rate of 3.2 per 1,000 people in 2021, which is higher than the national average. Regardless of whether our state is above or below this average, the divorce process can be painful if you are going through it or if you are affected by it. North Carolina state law governs most aspects of the divorce process, with some exceptions. Military divorce, which can involve two military spouses or a servicemember and a non-military spouse, deals with both state and federal legal issues. While North Carolina divorce law addresses issues like child custody, child support, and spousal support, federal laws involving the military can impact property division. Military pensions and retirement benefits are subject to complicated rules. They are different than the rules for civilian divorces, which can make the process understandably stressful. If you or your spouse is in the military and you need assistance with your divorce, one of our knowledgeable military divorce attorneys at Melone Hatley, P.C. can help you understand and fight for your rights. We can advocate for your interests with both state court and military officials. Call our office today at 800-479-8124 to schedule an appointment, or visit our website and ask a question with the online contact form.
North Carolina law applies to most aspects of military divorces in North Carolina. However, several federal and state laws apply specifically to military divorce proceedings.
Military families tend to move more often than civilian families. This can present issues with jurisdiction in military divorces and child custody cases since ex-spouses might end up living in different states. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) establishes rules and standards to help state courts determine which state has jurisdiction over a child custody dispute. Nearly every U.S. state, including North Carolina and the District of Columbia, has enacted the UCCJEA.
The Servicemembers Civil Relief Act (SCRA) protects military service members involved in legal disputes while on active duty. For example, a service member deployed overseas might be unable to file a timely response to divorce papers. The SCRA bars state courts from entering a default judgment against them or holding them in contempt if their military service temporarily prevents them from participating in a legal proceeding.
North Carolina family law governs most aspects of property division in military and civilian divorce cases. It defines what assets constitute marital property and establishes guidelines for the equitable distribution of those assets. Military benefits, however, are subject to laws at the federal level. The Uniformed Services Former Spouse Protection Act (USFSPA) defines how state courts may divide military retirement benefits between service members and their spouses.
Active duty service in the military can mean never staying in one place for very long. A service member may face temporary deployments to various locations around the country or the world or a permanent change of station (PCS) lasting two years or longer. Relocating can cause problems with legal matters like divorce. North Carolina law, for example, has minimum residency requirements to file for divorce in state court. Members of the military or civilian spouses who have only recently arrived in the Charlotte area might have to wait before they can file for divorce.
State law establishes procedures for serving someone with divorce papers. These procedures apply to military and non-military spouses alike. Someone must hand-deliver the court papers, regardless of whether the person is in the Charlotte area or on the other side of the planet. The latter situation can be challenging for civilian spouses who want to file for divorce. If a service member is deployed abroad, the service must also comply with international law and the laws of the nation where the service member is located. Our family law attorneys with experience in military divorces can work with the court and the military to oversee that service of the divorce papers happens correctly.
Federal law protects military spouses and ex-spouses from issues that may arise if they cannot be present for a family law proceeding. The SCRA prohibits state courts from holding military service members in contempt or entering default judgments against them while they are away on deployment.
Military pensions and other benefits are different from other retirement accounts. A service member’s “disposable retired pay” is subject to division in a divorce case. Certain other benefits are not, such as:
A court may take these benefits into account when determining child support or alimony, but they are not subject to equitable distribution between spouses.
A spouse is entitled to a portion of a military pension that meets North Carolina’s definition of marital property. This generally means any benefits accrued during the marriage. The US government, however, will only handle the division of a military pension under certain circumstances, known as the “10/10 rule”:
When a service member satisfies both conditions of the 10/10 rule, the Department of Defense (DOD) will send their ex-spouse a portion of their monthly retirement benefits once they become eligible. A North Carolina court may order a division of a military pension in situations that do not satisfy the 10/10 rule, but the DOD will not handle the division of payments. The service member might be obligated to send payments directly to their ex-spouse.
Non-military spouses may receive health benefits through their spouses’ employment. Whether these benefits may continue after a divorce depends on several factors. The most important factor is known as the “20/20/20 rule”:
However, even if a non-military spouse meets all of the criteria of the 20/20/20 rule, not all of the benefits they enjoyed during the marriage will continue. They will still have coverage under Tricare and access to commissaries and Morale, Welfare, and Recreation (MWR) programs. Other benefits, such as dental coverage, might not be available.
Civilian spouses who do not meet all of the 20/20/20 rule’s requirements could still be eligible for continued benefits for a maximum of one year after the divorce. For this to apply, the marriage and the spouse’s military service must have overlapped for at least 15 years.
Men and women serving in the military and their non-military spouses face unique and complex challenges when going through the divorce process. Military pensions, PCS issues, and deployment are only a few of these challenges. Military divorces must also contend with family law issues like child support, child custody, spousal support, identifying marital property, and achieving the equitable distribution of that property. These challenges require a careful and well-planned approach.
Our military divorce attorneys have knowledge and experience in cases that are similar to your own. They have navigated DOD and VA bureaucracies many times before. We can help you address complicated and difficult processes like:
Military divorce presents distinct legal issues that involve complex regulations and procedures. Issues like dividing military benefits can be particularly challenging. Military families, including members of the military and non-military spouses, need legal advice that covers both military procedures and North Carolina family law. Our military divorce lawyers at Melone Hatley, P.C. are here to help clients in the Charlotte area. Our law firm offers free eBooks and advice videos to help you understand your rights. You may schedule an appointment by calling our firm at 980- 288-8909 or filling out our online contact form.
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