When a Divorcing Spouse is a Member of the Military

Divorce can be a complicated and emotional process under any circumstances, but when one spouse is a member of the military, additional difficult and complex issues come into play. From unique legal protections to special considerations regarding property division, child custody, and support, navigating a divorce involving a military spouse requires knowledge of both family law and military regulations. If you or your spouse are in the military and are contemplating divorce, here’s what you need to know. For personalized advice and assistance tailored to your specific needs in Union, Essex or Middlesex County, contact the Law Offices of John B. D’Alessandro for help from a skilled and experienced Union divorce lawyer.

1. The Service Member’s Civil Relief Act (SCRA)

One of the first things to understand is the Servicemembers Civil Relief Act (SCRA), which provides legal protections to active-duty military members facing legal proceedings, including divorce. The purpose of the SCRA is to ensure that a service member’s military duties do not unfairly affect their legal rights. Under the SCRA, a military member can request a delay (also called a “stay”) of divorce proceedings for up to 90 days, giving them time to respond to the action and fully participate in the case.

However, this stay does not automatically apply. The service member must formally request it, and the court will generally grant it if the request meets the applicable criteria. This provision is particularly important if the service member is stationed overseas or deployed, as the delay can provide them with more time to manage both their military duties and the divorce process.

2. Division of Military Benefits and Pensions

When a divorcing spouse is a member of the military, the division of military retirement benefits, such as pensions and health insurance, becomes a significant factor. Under the Uniformed Services Former Spouse Protection Act (USFSPA), military retirement pay can be divided between the spouses as part of the divorce settlement. However, there are strict rules about how this is done.

For example:

• Eligibility for Pension Division: A spouse must have been married to the service member for at least 10 years while the service member was on active duty to qualify for direct payments from the military pension. This is often referred to as the “10/10 rule.”
• Health Care: A former spouse may be eligible for continued health care coverage through TRICARE if they were married for at least 20 years during the service member’s time in active duty. If the marriage lasted between 15 and 20 years, the former spouse may still receive some benefits, but only under certain conditions.

It’s important to consult with an attorney who has experience with military divorce to ensure that the division of benefits is handled correctly.

3. Child Custody and Visitation Issues

Military service often involves deployments and frequent relocations, which can complicate custody and visitation arrangements in a divorce. Courts typically want to create custody plans that are in the best interests of the child, but they must also account for the realities of military service.

• Relocation: A service member may be transferred to a new duty station, which could impact custody arrangements. In these cases, the court may allow the military parent to relocate with the child, but it will usually require a modified custody arrangement to ensure the other parent has access to their child.
• Deployments: If a service member is deployed, they might not be able to participate in regular custody exchanges. Courts often allow the service member to arrange visitation around their deployment schedule or temporarily transfer custody to the other parent during the deployment period. In some cases, the service member may even have the right to request that the divorce be delayed until they return from deployment.

4. Spousal Support and Alimony

When determining spousal support or alimony in a military divorce, courts will consider many factors, including the length of the marriage, the financial needs of both parties, and the service member’s income. Military members receive a unique set of benefits, including base pay, allowances for housing, and special pay for dangerous duties, which will all be factored into the alimony calculation.

If the service member is retiring and receiving a pension, that income may also be factored into the spousal support determination. Alimony orders in military divorces can be adjusted in some cases based on changes in the service member’s military status, such as a deployment or retirement.

5. Child Support Considerations

Child support in military divorces is similar to civilian cases in that it is based on the child’s needs, both parents’ incomes, and the best interests of the child. However, the military’s unique pay structure, including basic pay, housing allowances, and special duty pay, must be considered when calculating the support obligation.

If the service member is deployed, courts will typically allow them to make temporary arrangements for child support. Additionally, military parents may have access to certain services like on-base childcare that can affect the support calculation.

6. Legal Assistance for Military Families

Divorcing while in the military can present challenges that are different from civilian divorces. Military members have access to legal assistance on base, which can provide valuable information about how military law applies to divorce. However, this legal assistance is typically limited to advice and does not include representation of a service member in court. For complete legal representation in a military divorce, it’s important to hire a family law attorney who is well-versed in both military and family law.

Contact Union Divorce Attorney John B. D’Alessandro

Divorcing a military spouse can be challenging due to the unique legal considerations involved. If you are facing a divorce with a military member, it is crucial to have an attorney with experience handling military divorce matters. At the Law Offices of John B. D’Alessandro, we understand the complex issues in a military divorce and are here to guide you and advocate for you. We’ll ensure your rights are protected and that the legal process goes as smoothly as possible.

Contact us today to discuss your case with an experienced family law attorney.