When one or both spouses serve in the military and are getting divorced, it’s important to be aware of certain differences from non-military involved divorces. This comprehensive guide explores the protections for service members and their spouses during divorce, including the rights of service members, the Servicemembers Civil Relief Act (SCRA), rights as a divorced military spouse, and more.
If you’re facing divorce in the military or are a military spouse, read on to understand your rights and options to protect the future of you and your family.
Rights of Service Members
As a military service member, you have specific rights during divorce proceedings. One crucial factor to consider is your duty assignments, which may affect your ability to participate in court proceedings. The Servicemembers Civil Relief Act (SCRA) provides protection for service members in civil cases, including divorce, by allowing courts to postpone proceedings if you’re unable to participate due to military service.
If you’re stationed overseas, on deployment or otherwise unable to meaningfully participate in your case due to military obligations, you can request a delay in proceedings to ensure you have a fair opportunity to present your case. It’s essential to inform the court about your military status to take advantage of these protections. With a divorce attorney trained in military cases, you can ensure your rights are protected if you’re on deployment or have a conflict with your service obligations.
Servicemembers Civil Relief Act (SCRA)
The SCRA is designed to protect the legal rights of active-duty service members. In the context of divorce, it allows courts to grant a stay of proceedings, typically for a minimum of 90 days, if military service prevents you from participating in court activities.
This act also protects service members from default judgments, ensuring you have time to respond to legal actions. If you’re on active duty or recently discharged, you can use the SCRA to request a delay in divorce proceedings, providing you with additional time to gather evidence and prepare your case.
Rights as a Divorced Military Spouse
If you’re a military spouse facing divorce, you are also entitled to certain rights and protections. Every case is unique, but here are some important considerations you should be aware of.
Military Benefits: If you were married for at least 20 years, with your spouse serving for at least 20 years during the marriage, you may be eligible for military benefits, including healthcare and commissary privileges.
Spousal and Child Support: Military regulations prohibit the use of a soldier’s military status or assignment to deny financial support to their spouses and children. Ensure you understand these rules and how they affect your support agreement.
Housing and Relocation: Divorce may impact your housing situation, especially if you live on a military base. It is advisable to plan for alternative housing and understand your relocation rights when you return from active duty.
Can You Be Divorced If Serving Overseas?
Yes, you can be divorced while serving overseas. If you’re stationed in a different country, you might face additional challenges related to jurisdiction, communication, and attending court hearings. The SCRA can help mitigate some of these issues by allowing you to request a stay in proceedings.
It’s crucial to work with an experienced military divorce attorney who understands the intricacies of international divorce and can guide you through the process.
What Happens to the Military Pension and Retirement in Divorce?
Military pensions and retirement benefits are often a significant point of contention in divorce cases. In general, these assets are considered marital property and are subject to division between spouses. The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows state courts to treat military pensions as divisible property, but it is up to the individual states to provide guidelines on how they should be divided.
The division of military pensions depends on various factors, including the length of the marriage and the length of military service during the marriage. A Military Pension Division Order (MPDO) is often required to divide retirement benefits, and it’s essential to work with an attorney who specializes in military divorce to ensure the proper division of these assets.
Common Questions Related to Military Divorce
Below are some of the most common questions related to military divorce. But remember, it’s best to speak with an experienced attorney for the most assurance and guidance in your case.
Will I Lose My Military Benefits After Divorce?
The answer depends on the length of your marriage and military service. If you’re eligible for benefits under the 20/20/20 rule, you may retain some benefits. Here is the qualifying criteria under the The Uniformed Services Former Spouse Protection Act:
- The former spouse was married to the military member for at least 20 years at the time of the divorce, dissolution or annulment.
- The military member has performed a minimum of 20 years of service that is creditable in determining eligibility for retired pay (the service member does not have to be retired from active duty).
- The former spouse was married to the member during at least 20 years of the member’s eligible military service.
Can I Be Divorced If I’m on Active Duty?
Yes, but you can request a delay in proceedings under the SCRA if your service impacts your ability to attend court.
How Is Child Custody Determined in a Military Divorce?
Child custody is determined based on the best interests of the child, considering factors like your military duties and deployment schedule. In order to best protect the future of your children’s future, it’s advisable to speak with a child custody attorney. Click here to speak with an experienced child custody attorney if your family is located in or around Raleigh, NC.
Speak with a Military Divorce Attorney in Raleigh, NC
Whether you’re a military service member or spouse, it’s crucial to work with an attorney through the divorce process. If you are located in Raleigh, NC or a surrounding county, contact the experienced attorneys at New Direction Family Law. We’ll help you understand your rights, navigate the legal process, and ensure a fair outcome. If you’re a service member or military spouse facing divorce, call (919) 646-6554 or fill out our contact form for the best legal guidance and support.