Steps to Filing a Divorce in the Military

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Being in the military can add stress to an already difficult relationship that can ultimately end in divorce. While the divorce rate for military families is low, around 3 percent overall, the issues involved in those cases tend to be more complex. The military divorce rate appears to be much higher than the rate for civilian divorces, which is about 2.5 per 1,000 people. In fact, military members might have the highest divorce rate of any occupation in the United States. 

Getting divorced while in the military might seem daunting since you must continue your regular duties while dealing with the divorce process. If you are deployed, it can keep you preoccupied. If you are a civilian spouse, you might be worried about losing military benefits once the court issues a divorce decree.

The fact that so many military couples go through a divorce means that you are not alone. Help is available from people who understand divorce’s impact on your life, family, and career. Let the experienced attorneys at Melone Hatley, P.C. guide you through your military divorce. We’ve helped hundreds of military spouses end their marriages fairly and equitably, and we can help you, too.

How Long Does a Military Divorce Take?

Military member signing divorce paperwork

In Virginia, a couple must live separately for a minimum time period before getting a court order granting their divorce. A deployment can count toward this period of separation, depending on when one spouse formed the intent to separate. The minimum length of time depends on whether they have minor children.

  • One or more minor children: The couple must live separately for at least one year.
  • No minor children: The minimum separation time is six months.

Once this period has passed, the amount of time needed to finalize the divorce will depend on factors like the case’s complexity and whether the parties will need to go to court. Very few divorce cases go all the way to trial. Most end with a settlement agreement covering all important issues, such as child custody and property division. If a divorce case has to go to trial, it may take several months to get a court date.

A military spouse’s duties could cause delays in a divorce case. As discussed in more detail below, federal law prevents any kind of court case from moving forward while a spouse is away on deployment unless the deployed spouse agrees to participate remotely. A judge will likely have to postpone a scheduled hearing or trial if the military spouse gets deployed.

Can I Get a Divorce While My Spouse is Deployed?

You cannot proceed with the divorce process while your military spouse is deployed unless they agree to participate remotely. The Servicemembers Civil Relief Act (SCRA) is a federal law that pauses all court cases involving active duty military during deployments. Without the SCRA, service members would risk default judgments since they cannot appear in court while deployed. Divorce proceedings and other legal matters must wait until they return home. However, the deployed military spouse can choose to participate remotely if they want to move the divorce forward.

What Makes a Military Divorce Different Than a Civilian Divorce?

Divorce is mostly a matter of state law. Each state has its own set of family laws that deals with issues like divorce, child custody, child support, property division, and alimony or spousal support. Military divorces often include additional legal issues involving federal law.

Military Retirement Pay

The division of military pensions between ex-spouses is among the most challenging aspects of many military divorces. The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows family courts to treat military retirement benefits as marital property. Therefore, at least part of a military spouse’s retirement pay is subject to the property division process. Most state laws define marital property as anything acquired during the marriage, with some exceptions. Any retirement benefits accrued by a military spouse during the marriage would be marital property.

A military pension is not a retirement account like an IRA or a 401k. It is the right to receive payments from the Department of Defense (DOD) after retirement. As a result, the method of dividing retirement benefits is different from civilian divorces. The DOD’s ‌Defense Finance And Accounting Service (DFAS) will only send payments directly to a civilian ex-spouse under specific circumstances. Otherwise, the retired military member is responsible for sending a share of each payment to their ex-spouse.

Delays in Military Divorce Cases

The SCRA can delay a divorce proceeding while a spouse is deployed on active duty. This can result in some military divorces taking longer to complete. However, the deployed military spouse can still participate remotely if they want to move the divorce forward.

Other Military Benefits

Non-military spouses may lose some or all of the military benefits they received during the marriage, such as health care and access to the commissary. A civilian ex-spouse’s eligibility to continue receiving health care coverage through the DOD depends on the length of the marriage and the spouse’s number of years of active service in the Armed Forces. In other cases, a civilian ex-spouse may be able to pay for transitional health coverage for a limited time after the divorce.

Are Military Divorces More Challenging Than Civilian Ones?

upset military father

Military divorces are different from civilian divorces in several important ways. This does not mean they are more difficult than civilian cases, but they can be. A divorce attorney with experience with military divorces can help make the process go more smoothly. At Melone Hatley, we have years of experience handling Virginia and North Carolina divorces for military members and their non-military spouses.

Military divorces are not always more complicated than civilian divorces, but they present unique challenges for which an attorney must be prepared. For instance, a military divorce could involve a military protective order or no-contact order, support payments mandated by the service member’s command, a service member invoking their protections under the Servicemember’s Civil Relief Act, Family Advocacy Program investigations, and division of a service member’s military pension and Thrift Savings Plan. In some cases, a service member will be deployed during the divorce, so an attorney must ensure that the service member can be contacted and be involved in court proceedings while they remain outside of the United States. Overall, while such divorces are not inherently more difficult, service members should ensure that their attorney is familiar with military procedures and issues in divorces from the outset of the case.

Step-by-Step Process for Military Divorce

Most aspects of a military divorce follow state family laws. As mentioned, federal law governs some issues, which means that the procedures for military divorce cases can differ from those in civilian divorces.

Step One: File the Divorce

You must file for divorce in a state where at least one of you is a legal resident. This usually requires living in a state for at least six months. Being stationed in a state can count toward this requirement. If you are deployed overseas, you may receive credit for residency in the state that is your home of record. If you are serving aboard a ship as a member of the Navy or the Marines, your home state is that vessel’s home port.

If a state court has jurisdiction to hear a military divorce, the USFSPA gives it the authority to divide a military spouse’s retirement pay. The court will base this decision on state laws regarding marital property and property division.

Step Two: Serve Divorce Papers

The spouse who filed for divorce (the “petitioner”) must have the other spouse (the “respondent”) served with the divorce papers. The respondent usually has limited time to file an answer with the court. A respondent in a civilian divorce could face a default judgment if they do not file a response in time.

This step is different in military divorces. The SCRA allows active duty military personnel to request a “stay” in the divorce proceedings if they are deployed or otherwise unavailable to participate. 

Step Three: Know What You Are Entitled To

It is essential to know what to expect from the divorce, whether you are a civilian or a military spouse. If you are a military member, the SCRA protects you from default judgments while away on deployment. You can expect your spouse to be entitled to a portion of your retirement pay.

The USFSPA protects the rights of a non-military spouse to a share of their spouse’s retirement benefits, along with other military benefits in some cases. This will depend on the length of the marriage and your spouse’s years of active service during the marriage. 

Step Four: Utilize an Attorney

The military divorce process can feel complicated. On top of state laws addressing issues like child support or property division, you may have to navigate federal laws and procedures, such as the rules regarding eligibility for direct payments of retirement benefits from DFAS. A divorce lawyer who understands these rules and procedures can help your case.

Does the Military Provide a Lawyer During the Divorce?

The Judge Advocate General (JAG) Corps provides legal counsel on most military bases. Their role, however, is only to answer questions and provide general legal advice. They cannot supply an attorney to represent you in your divorce case.

Handling Custody Matters After a Military Divorce

military father hugging his daughter

The most crucial concern in any child custody dispute is the “best interests of the child.” Courts consider this before anything else. The best course of action is often for you and your partner to discuss a custody plan and work out an agreement.

If a child custody order is in place when a military parent deploys, a court will not change the order until the deployed parent returns in almost every situation. The only exception would be if there is significant evidence that a change would be in the child’s best interests.

Steps to Take During and Post-Divorce

When you begin a divorce case, you should revoke any powers of attorney or advance medical directives that allow your spouse to make decisions for you. Once your divorce is complete, you’ll need to establish a new estate plan and reevaluate any agency relationships you have in place. The following is a short but not exhaustive list of priority items you should update.

Powers of Attorney

You should revoke any power of attorney that names your ex-spouse as an agent with authority over you or your affairs. Destroy all copies if possible, and provide notice of the revocation to anyone who has previously relied on the power of attorney or might rely on it in the future.

Your Will & Trusts

Your will does not change just because you got divorced. If your current will names your ex-spouse as an administrator, executor, or beneficiary, and you no longer want them in any of those roles, be sure to have their name removed.

Insurance Policies

All of your insurance providers need to know about the divorce. This includes health, auto, disability, homeowner’s or renter’s, and life insurance. You may need to change the beneficiary designations on your policies.

Bank Information

Close all joint accounts. Have your ex-spouse’s name removed from your accounts where they are an authorized signer.

Informing Your Employer

Your employer might need to change your benefits, such as health insurance or retirement.

Divorce is Difficult No Matter the Circumstances You Face

Military divorces present legal issues that you will not find in civilian cases. Military and non-military spouses need legal assistance from an attorney who knows state divorce law and federal military law. Our military divorce attorneys can help clients throughout Virginia and North Carolina. We offer free eBooks and advice videos to help you understand your rights and options. Schedule an appointment with one of Melone Hatley’s experienced military divorce lawyers today by calling 800-479-8124 or filling out our online contact form.

Charles Hatley

Written By Charles Hatley

Charles Hatley joined the firm in 2020 as the firm’s first Litigation Partner. Charles brings with him an unwavering emphasis on a client-focused practice model.
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