Military Divorce

If you or your spouse is a serving member of the US Military, there is an exception to the divorce laws which apply to civilians. If you wish to formally separate from your spouse in the military, it is not the same for those in civilian life. In the US there is a federal law known as the Service Members Civil Relief Act. You can read more about this legislation at Military.com.

This law gives a form of congressional protection which protects serving men and women from having to respond to law suits which include divorce. It means if you plan to formally separate and thus begin a time of separation, formal papers can not be served on your spouse whilst they are on active duty. In fact the law specifies that the military spouse need not respond to any legal action until they return from active duty and then for a period of 60 days thereafter. The main aim is to allow the serving officer to concentrate all their time and energy to serving their country.

And there's more. The spouse in the military can not be held legally responsible for any 'default' behavior by them in not responding to their spouse's legal application. In fact the court may appoint a lawyer to act for the member of the military but not for the actual divorce hearing should it arise.

Now if you are a member of the military, it is not okay to simply ignore any legal documents regarding separation and/or divorce even if you are fighting for your country overseas. The court must be made aware of your appointment in the armed services.

Being separated is the first step in obtaining a divorce and both parties need to be aware that the longer it takes to move from the separation to the actual divorce does impact on both spouses. As regards military separation pay, the size of the payout, if granted, to a non-military spouse depends largely on the length of the marriage.

It's a somewhat complicated formula but in short, the longer you are married to a military spouse, the more of their pension you are likely to receive. In other words, depending on who you are in the proposed divorce, get it over as soon as possible.

Another piece of legislation you may wish to consider before you separate from your military marriage is the Uniformed Services Former Spouse's Protection Act. This can be studied in more detail at Military.com.

This site does not claim to give legal advice but it does set out to explain, amongst other things, military pensions and how they are divided after separation and divorce.

Part of the legislation refers to the "Ten Year Rule". Some people believe it means that military pensions can only be divided if the marriage has lasted for at least ten years. This is not true. In fact because divorce is considered on a state basis, the amount of pension allocated will depend on the ruling in each state court. As a general rule, the only part of a pension which may be divided is that which was earned whilst the spouse was serving in the military and was married to his or her ex. For that very reason, being legally separated but not divorced will favor the spouse if and when it comes to sharing any military pension. The length of the marriage (and separation means you are still married) is the factor used in determining the financial split.

Separation and Divorce

The issues, if you choose to separate, are almost the same as when you divorce with one major exception. Whilst you are separated you are still married.

But in seeking a formal separation, you should consider such things as child support, child custody and the division of assets and income. The whole point of a separation agreement is that your position can be protected while you wait or plan for a divorce. Make sure that every aspect of any separation agreement is well and truly tested and to your satisfaction. If it comes to a divorce hearing in court, any judge is likely to approve of the separation agreement becoming the divorce agreement.

Do not consider the separation agreement as some temporary position which will change if and when you arrive in the divorce court. Get all the details of the separation agreement exactly as you want them.

This, of course, all points back to you having a lawyer who is experienced in military divorce cases. Your local bar association should be able to recommend someone in that field of expertise. Alternatively if you know of someone who recently went through a military divorce, they may be able to recommend their lawyer.

By obtaining a legal separation, you do give yourself certain advantages e.g.

• You can live apart and assess your feelings whilst still remaining married.
• If you are a religious person for whom divorce is unacceptable, you can remain married but separate.
• As a legally separated person, you are still entitled to the medical and other benefits which you would lose once you become divorced.
• Remaining married for at least ten years may mean you would receive certain social security benefits.
• Any separation agreement, if satisfactory, can be converted into a divorce settlement thus saving a lawyer time and you the cost.

Be aware that a military divorce is no more complicated than a civil divorce but the two are certainly different. Separating needs a formal agreement which can be the basis of any future divorce settlement. But the military does have rules regarding serving papers on enlisted servicemen and women, on which state can hear an application and how any pension or other benefit is to be shared if at all.

Learn all you can about the relevant state and federal divorce laws involving the military and the rest should be straightforward.

Here are additional resources you might be interested in:

What are the Divorce Rights of Military Spouses in the USA

There's a number of places online where you can carry out a military divorce (which is much cheaper than going through the courts and lawyers). Legal Zoom's 3-Step Divorce Process can provide quick and easy online divorces.

What does your Divorce Attorney need to know about your Military Divorce?

Factors Contributing to Increased Military Divorce Rates

Are you considering getting a divorce? There's an excellent ebook about deciding whether to Get a Divorce or Stay In the Relationship. Every couple should read this before making the decision.

If you're on the verge of having a divorce, read this to Save Your Marriage.