Special Rules That Apply in a Military Divorce

Divorce is rarely simple, but when one or both spouses serve in the military, the process involves additional legal rules that do not apply in civilian cases. Federal statutes intersect with New Jersey family law in ways that can affect jurisdiction, timing, property division, support, custody, and benefits. Understanding these special rules is essential to protecting your rights and avoiding costly mistakes.

At the Law Offices of John B. D’Alessandro, we represent clients throughout Union, Essex, and Middlesex Counties in military and civilian divorces alike. Below is an overview of the key issues that make military divorces different, and why careful planning matters. For advice and representation tailored to your specific circumstances, give us a call to speak with a dedicated Union military divorce attorney.

Jurisdiction and Residency Requirements

In a typical New Jersey divorce, at least one spouse must have lived in the state for 12 consecutive months before filing. Military families, however, often move frequently, and service members may be stationed in New Jersey without being legal residents.

New Jersey courts can still have jurisdiction over a military divorce if certain criteria are met, such as when the service member is stationed in the state and considers New Jersey a home of record, or when the non-military spouse meets the residency requirement. Determining the proper venue at the outset is critical because filing in the wrong jurisdiction can delay the case or affect outcomes related to property and support.

The Servicemembers Civil Relief Act (SCRA)

One of the most important federal laws affecting military divorce is the Servicemembers Civil Relief Act (SCRA). The SCRA is designed to protect active-duty service members whose military obligations interfere with their ability to participate in legal proceedings.

Under the SCRA, an active-duty service member may request a stay (temporary pause) of divorce proceedings if military service materially affects their ability to appear in court or respond to filings. Courts generally grant an initial stay of at least 90 days when properly requested.

While the SCRA protects service members from default judgments, it can also slow the divorce process for the non-military spouse. Judges must balance fairness to both parties while honoring federal protections.

Division of Military Retirement Benefits

Military pensions are often among the most valuable marital assets, and their division is governed by federal law under the Uniformed Services Former Spouses’ Protection Act (USFSPA).

The USFSPA allows state courts, including New Jersey courts, to treat military retirement pay as marital property subject to equitable distribution. However, it does not require an automatic division. The court still applies New Jersey’s equitable distribution factors to determine what is fair.

A key point of confusion is the so-called “10/10 rule.” This rule does not determine whether a former spouse is entitled to a share of military retirement. Instead, it governs how payments are made. If the marriage lasted at least 10 years, overlapping with 10 years of military service, the former spouse may receive payments directly from the Defense Finance and Accounting Service (DFAS). If the marriage does not meet this threshold, the service member may still owe a share of the pension, but payments are made directly between spouses.

Thrift Savings Plan (TSP) and Other Benefits

In addition to pensions, military members often have a Thrift Savings Plan (TSP), which functions similarly to a 401(k). The marital portion of a TSP is subject to equitable distribution and requires a properly drafted court order to divide without tax penalties.

Other benefits, such as housing allowances, bonuses, and special pay, may also factor into property division or income calculations for support purposes.

Alimony and Child Support in Military Divorces

Alimony and child support in a military divorce are determined under New Jersey law, but military compensation adds complexity. Basic pay, housing allowances (BAH), subsistence allowances (BAS), and certain other special pay may be considered income when calculating support.

Courts carefully analyze military pay structures to determine a service member’s true earning capacity. Likewise, frequent relocations, deployments, and changes in duty status can affect the analysis of need and ability to pay.

Importantly, military regulations do not override court-ordered support obligations. Failure to comply with support orders can lead to both civilian enforcement and military disciplinary consequences.

Child Custody and Deployment Issues

Custody cases involving military parents require special attention, particularly when deployment is a possibility. New Jersey law generally prohibits courts from using past or future military deployment as the sole basis for denying custody or parenting time.

Parenting plans in military divorces often include provisions addressing temporary custody arrangements during deployment, communication with the child while deployed, and the restoration of parenting time upon return. Clear, detailed plans help reduce conflict and provide stability for children.

Health Care and Survivor Benefits

Military health care benefits, including TRICARE, are often a major concern for non-military spouses. Continued eligibility after divorce depends on several factors, including the length of the marriage and overlap with military service. Some former spouses qualify for extended coverage, while others must seek private insurance.

Survivor Benefit Plan (SBP) elections are another critical issue. SBP can provide ongoing income to a former spouse after the service member’s death, but strict deadlines apply. Failing to address SBP in the divorce judgment can result in permanent loss of this benefit.

Why Military Divorces Require Experienced Legal Guidance

Military divorces involve a complex interplay between state and federal law. Mistakes in drafting settlement agreements or court orders, especially those involving retirement, benefits, or jurisdiction, can have long-term financial consequences.

An attorney familiar with military divorce law can ensure that all applicable rules are followed, that benefits are properly addressed, and that your rights are protected both now and in the future.

Contact Union Family Law Attorney John B. D’Alessandro for Help With Military Divorce and Related Matters

A military divorce is not simply a civilian divorce with a uniform involved. Special federal laws affect everything from timing and jurisdiction to retirement division, custody, and benefits. Understanding these rules is essential to achieving a fair and enforceable outcome.

The Law Offices of John B. D’Alessandro assist clients in Union, Essex, and Middlesex Counties with the unique challenges of military divorce. Whether you are an active-duty service member or the spouse of one, knowledgeable legal guidance can help you navigate the process with confidence and protect what matters most. Contact us today to discuss your situation and find out how we can help.