Military Divorce

What Is it? How Does it Impact on You?

This article is pitched at serving or retired military personnel and their spouses. It is a general article, does not refer to specific cases and is not intended as a legal document. If you have questions or want specific legal advice, ask a professional.

In short Congress makes laws about divorce in the military but cases are decided in state courts. State courts can make a ruling on a retired military person’s pay and treat such pay as community property should there be a divorce.

One vital point here is that national legislation does not order state courts to divide retired pay but rather allows state courts to do so. State courts have the freedom to act as they see fit.

It sounds messy but is really clear. If a state court decides that a former spouse is entitled to some or all of a retired service member’s pay, the former spouse can apply to the court for a direct payment. To receive that direct payment, the former spouse must have been married to the military spouse for at least ten years in which their partner served in the military. That’s known as the overlap which is the number of years the couple were married when the military spouse was still in the service

There are many conditions or rules which apply and these are too detailed to mention in full. However, here are some of these conditions.

• A retired service member may have more than one former spouse and more than one may be entitled to a part of the retired income. If so, apply as soon as possible as payments if authorized are made on a first-come first-served basis.

• Because a former spouse re-marries, they are not necessarily prevented from receiving any payment so ordered by a state court.
  

• The state court must have jurisdiction to decide on retired pay and that involves, amongst other things, the place of residence of the retired military person.

• A former spouse must provide relevant documentation if applying for a court-sanctioned payment. Any changes ordered by the court also require appropriate authorization from the relevant officials.

• A former spouse must advise the court of any changes such as their marital status or change in health insurance cover through employment.

• Payments are not necessarily made immediately with the service center given up to 90 days to make the payment.
  

• A former spouse of a service member may be eligible for free medical care depending on when they were married. They have to be married for at least 20 years with a 15 year overlap. If they re-marry or accept employment in which their pay includes free medical cover, their military medical cover may be withdrawn.

• The service member being on active duty is another factor to consider. Being on active duty can protect that military spouse from having to respond to a divorce application.

• If the service member is disciplined for misconduct and his or her retirement pay is affected, the government will continue to pay any money so ordered by the court so long as the former spouse remains unmarried.

As stated this is a complex issue and professional advice from a lawyer experienced in military divorce is your best option. More details can be found online at DFAS