If at least one spouse in a marriage is in the military, the couple will not be treated the same as a non-military couple. The first thing to remember is that Congress has passed legislation specifically for military divorces. That's right; a military divorce is in part covered by federal law. So when you choose to separate and then divorce, how your spouse responds depends very much on whether or not they are in the military.
But whilst there are special factors which come into play with a military divorce; factors such as where the divorce application may be heard, when a military spouse must respond to any application and what role, if any, the military will play in acting on any court orders, the divorce proceeding itself is standard. And the military may garnish a member's pay should a court rule certain payments are to be made.
This means that a civilian court will hear the application and make decisions on such things as whether the divorce is granted and if alimony and child support are to be paid and, if so, in what amounts.
If a military spouse is ordered to make child support payments then such payments may not exceed 60% of the member's income.
But the issue of a response to a military divorce needs a more detailed explanation. Assuming the non-military partner is the one wishing to make the divorce application, he or she must do so through the relevant state court. But remember that federal legislation applies here and the relevant state may be where the military spouse is currently living or where or she has registered their home address. In other words a military divorce may have a choice of venues for the court hearing. This situation does not arise with a civilian divorce.
So the non-military spouse would approach the court with the application and the court would have to be advised that the other spouse is a serving member of the military. Then the location of the military spouse will come into focus.
Where the military spouse is based, their location, is vital. If the military spouse is on a tour of duty in an overseas country, the person making the divorce application may have a longer than usual wait before the case comes to court.
This of course would not happen with a civilian divorce.
The federal government does not want to place undue pressure on its military especially if they are already under pressure by defending their country in a theatre of war. For this reason, members of the military have a certain protection from legal process. This does not include criminal activity but it does include the serving of divorce papers.
Now the military spouse can accept the divorce papers and can respond promptly. But it is not a legal requirement for the military spouse to respond to do so until they return from active duty and for up to sixty days once they return home. The military spouse is given this period of grace before any response is required.
To the non-military spouse, be aware of this situation. You may have been separated for some time and would like the legal tie of your marriage to be broken. You may wish to re-marry or seek employment in another state or move to be closer to your family. But if your military spouse is fighting abroad, there may a long delay in any response to your divorce application.
Mind you, that delay could count to your advantage. Any sharing of a military pension to an ex-spouse depends on a number of factors one of which is the length of your marriage. And separation is not a divorce. A separated couple, for the purposes of benefit entitlements, is still married.
If you do receive a benefit or benefits as an ex-spouse of a military person, should you re-marry you automatically lose those benefits. If your new marriage fails you may well be re-instated to your previous benefit scheme.
There is little you can do as far as court action is concerned if your military spouse takes advantage of the law and chooses not to respond to the application you have made. But you can prepare your case with your lawyer. If there are children involved and you intend to apply for alimony and/or child support, then working to present your case is important.
The first step is to engage a lawyer who knows the military divorce law inside out. The rules and exceptions using federal, state and military law are a minefield for the untrained person. It's even tricky for a lawyer who does not specialize in this field. Hire a good military divorce lawyer.
The court is required to make a ruling on the divorce and any additional issues such as custody arrangements, visitation rights, etc. This is where you must make a solid preparation in the time in which your spouse doesn't respond to your military divorce application.
The court will consider all manner of things including any criminal activity by a spouse and any violence or disciplinary action taken by the military against the military spouse. The court will want to know who has taken responsibility for the children and what manner of custody do the parties wish to have put in place. With thorough preparation in the time leading up to the case being heard, you give yourself every chance of being successful.
The military spouse does have some advantages over a civilian spouse as far as responding to a divorce application is concerned. But there are rules which must be followed and you can make the most of the time spent waiting to go to court by preparing an excellent case for yourself.
As the military spouse and one on overseas duty, you would do well to at least appoint a lawyer and have him or her advice the court of your situation. If you wish the divorce to proceed and have no issue with children or alimony matters, the sooner the case is heard the better for you. But as the federal law grants you this period of grace you are entitled to use it. The best way forward is to hire an experienced lawyer, one who deals with military divorce.
Here are additional resources you might be interested in:
Read more
Military Divorce information.
If you're in the USA and there's no property or finances to settle, then you can do it yourself. There's a number of places online where you can carry out a 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.
United Kingdom Military Divorce information.
Australia Military Divorce information.
If you plan to get a divorce in Australia, the
Aussie Divorce Services can guide you.
Subscribe
