Divorce can be a confusing, complicated, and stressful time for military couples. However, gaining a general understanding of how this process works, while seeking to identify the specific issues that may apply in your case, can greatly reduce the time, expense, and emotional strain of a divorce. While you will largely follow the same process and procedures as a civilian couple when filing for divorce, there are unique legal issues which may apply result of military service. These issues may include determining the custody of children, calculating child and spousal support, and determining if any post-divorce benefits apply.
While divorce is largely governed by state law and local procedures, depending on where you file, there are certain federal statutes and military regulations which may be applicable to your divorce. Examples include the Uniformed Services Former Spouses' Protection Act, which can affect how disposable military retired pay is divided between the service member and former spouse, as well as determining eligibility for continued medical, commissary, installation exchange, and other benefits.
Generally, the military views divorce as a private civil matter to be addressed by a civilian court. Commanders rarely get involved in domestic situations except in limited cases, such as a claim by a dependent that he or she is being denied adequate financial support by the service member spouse. Even in such cases, a commander's authority is limited, absent a civilian court order.
Service members and their spouses have access to military legal assistance services at no cost through the installation legal assistance offices. In a divorce or family law matter, a service member and dependent spouse will need separate legal assistance attorneys to advise them to ensure both parties receive independent, candid and confidential advice, and to be sure there is no conflict of interest in the representation of both parties. Communications between a client and a legal assistance attorney are private, confidential and are generally covered by the attorney-client privilege. While military legal assistance attorneys may not be able to draft specific court documents or represent members or their families in court, they can provide helpful advice on a range of legal issues including divorce and child custody, income taxes, the Servicemembers Civil Relief Act and wills.
Legal assistance offices also provide notary services free of charge. For military divorce or legal separation situations that require representation in civil court or involve contested issues such as child custody, spousal/child support or division of assets like retirement pay, it is recommended that you consult with a civilian attorney who is knowledgeable of the divorce laws of your particular state and has extensive experience with military-related family law.
Servicemembers Civil Relief Act protections related to divorce proceedings
The Servicemembers Civil Relief Act helps protect service members' legal rights when called to active duty. It applies to active-duty members of the regular forces, members of the National Guard when serving in an active-duty status under federal orders, members of the reserve called to active duty and members of the Armed Services, National Oceanic and Atmospheric Administration, Public Health and the Coast Guard serving on active duty in support of the armed forces.
In regard to divorce proceedings, service members may obtain a "stay" or postponement of a civil court or administrative proceedings if they can show their military service prevents them from either asserting or protecting a legal right such as an upcoming deployment. This is not an automatic right, and a military judge must find there good cause to do so, based on the justification provided by the military member.
Specifically, the courts will look to whether military service materially affected the service member's ability to take or defend an action in court. If the service member submits a written communication to the court showing:
- How military requirements materially affect the ability to appear
- The date when the service member will be available to appear, and
- Communication from the commanding officer stating that duty prevents appearance and leave is not authorized, the court must grant a stay of at least 90 days. Because some state courts have strict requirements of what specific information must be contained in this notice in order to grant a stay, service members should promptly consult with a legal assistance attorney if they intend to make such a request.
The Servicemembers Civil Relief Act also provides certain protections for members regarding default judgments for failure to respond to a lawsuit or failure to appear at trial. Before a court can enter a default judgment against a military member, the person suing the member must provide the court with an affidavit stating the defendant is not in the military. If the defendant is in the military, the court will appoint an attorney to represent the defendant's interests (usually by seeking a delay of proceedings). If a default judgment is entered against a service member, the judgment may be reopened if the member makes an application within 90 days after leaving active duty, shows he/she was prejudiced and shows he/she had a legal defense.
Uniformed Services Former Spouse Protection Act benefits related to divorce proceedings
The Uniformed Services Former Spouse Protection Act is a federal law that provides certain benefits to former spouses of military members. The benefits may affect receipt of retirement pay and medical care, as well as the use of the exchanges and commissaries. For detailed information about this act and how it may impact your divorce proceedings, please read the article Uniformed Services Former Spouse Protection Act for Divorced Spouses in the Military.
Eligibility for military benefits
Whether you are entitled to commissary, exchange or medical benefits depends on the length of time you were married, the length of time your spouse served in the military and the number of years your marriage overlapped with his or her military service. To retain full military benefits and privileges upon divorce from a servicemember, you must meet the requirements of what is known as the "20/20/20 Rule."
20/20/20 former spouse: An un-remarried former spouse receives medical, commissary, exchange and theater privileges under the Morale, Welfare and Recreation program if:
- He or she 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 at least 20 years of service that is creditable in determining eligibility for retired pay (the member does not have to actually be retired from active duty).
- The former spouse was married to the member during at least 20 years of the member's retirement-creditable service.
Therefore, if you were married for at least 20 years, and your former spouse performed at least 20 years of service creditable for retired pay, and there was at least a 20-year overlap of the marriage and the military service, you are entitled to full commissary, exchange and health care benefits after the divorce.
20/20/15 former spouse: In the event that you cannot qualify under the "20/20/20 Rule," you may still be eligible to one year of transitional military benefits for purposes of military medical care only. Similarly, the 20/20/15 rule requires the former spouse to show three things:
- The service member performed at least 20 years of creditable service;
- The parties' marriage lasted at least 20 years;
- The period of the marriage overlapped the period of service by at least 15 years.
Should these requirements be met, the former spouse will be entitled to retain TRICARE medical coverage, but only for a transitional period of one year. Unlike a 20/20/20 former spouse, a 20/20/15 former spouse will not have access to the military exchange, installation privileges or commissary privileges.
Effect of Divorce on Military Benefits
Unless you meet the strict requirements of the 20/20 Rule, you will not be eligible to continue using the commissaries and exchanges once your divorce, dissolution or annulment is finalized. Until your divorce is final you may retain your identification card and can continue to receive your commissary, exchange and health care benefits. Here are some additional issues for you to consider:
- Installation housing. The service member does not have the authority to evict you; only the installation commander has that authority. By law, military family housing can only be occupied by service members who reside with their family members (with some exceptions). Each of the branches of service has regulations which require the family housing unit to be vacated usually within 30 days if the service member stops residing there or if there are no family members residing there. As a result, if you are separating from your spouse and you are not in the military, you and your family must vacate military family housing.
- Health care benefits. If you are neither a 20/20/20 nor a 20/20/15 former spouse, you will not be entitled to any military health benefits after your divorce, dissolution or annulment is final. However, you can receive health care coverage through the DoD Continued Health Care Benefit Program, a premium-based temporary health care coverage program, for 36 months of coverage until alternative coverage can be obtained. Further information about this program is available on the TRICARE website.
- Spousal and Child Support. Each of the military services has policies requiring service members to support family members upon separation in the absence of an agreement or court order. Please note these policies are designed to be temporary measures and that a commander's authority is limited without a court order. In order to receive alimony or child support you must specifically request that a civilian court do so. Additionally, you must send Defense Finance and Accounting Service an order from a court or child support enforcement agency that directs the government to pay monies for support or alimony.
- State courts with jurisdiction over dependent children or a state agency with the proper authority can order child support payments. Alimony payments can also be ordered by the court and satisfied through a garnishment order submitted to DFAS. The allotment will go into effect 30 days after the notice was sent to the military member by DFAS. You must obtain the garnishment order from a state court over the military member and provide it to DFAS. An overview of the garnishment process is available on the DFAS website.
Child support can additionally be secured through what is known as a statutory allotment. Statutory allotments are initiated by a complainant parent, state agency, or private attorney, who can establish a support obligation greater or equal to two months.
The impact of a divorce on children's eligibility for medical benefits through TRICARE
When there is a divorce, the service member must update the information in the Defense Enrollment Eligibility Reporting System along with a copy of the divorce decree. After this information is updated, spouses are no longer considered dependents and lose their eligibility to continue receiving health care benefits through TRICARE.
Biological and adopted children of the service member remain eligible for TRICARE up to age 21 (or age 23 if enrolled in college) as long as the child remains a dependent child of the service member. Dependent children of the service member over the age of 21 (or 23 if enrolled in college) are eligible to purchase coverage through TRICARE Young Adult up to age 26. Stepchildren who were not adopted by the service member lose their TRICARE eligibility once DEERS is updated. Stepchildren may be eligible to purchase coverage under the Continued Health Care Benefit Program.
When both of the divorced parents are service members, you must decide together which parent should be the sponsor of the child's benefits. If an agreement cannot be reached, visit an ID card office for additional guidance on how to resolve the issue. If custody of your child is shared, and you and your former service member spouse live in different TRICARE regions, you should decide carefully which health plan option your child(ren) should use based on the amount of time they stay with each parent. If you need further assistance, contact your regional contractor.
Divorce in overseas locations
While service members and their spouses can file for divorce through overseas jurisdictions, the courts of the United States may or may not recognize the ruling. Generally, if either you or your spouse is domiciled in the jurisdiction that grants the divorce, and there is proper service and notice, then that court (foreign or domestic) will have the power to grant the divorce and the U.S. courts will recognize it.
You can avoid this potential issue by filing for divorce in a state, rather than through a foreign country. Military divorce laws allow service members and their spouses to file for divorce in either the state where the service member is currently stationed, the state where the service member claims legal residency or the state where the non-military spouse resides. When determining in which state to file, it is important to remember that the Uniformed Services Former Spouse Protection Act grants the power to divide the military pension in a divorce to the state where the service member claims legal residency. One caveat is if you own property, such as a house, in a foreign country. You may wish to consult your military legal assistance attorney or your civilian lawyer in such situations.
If you are living overseas when your marriage is terminated by divorce or annulment, you and your children (as well as your possessions) may be able to return to the United States (or your country of origin if you are foreign nationals) at the government's expense. Service members permanently stationed outside the United States may request early return of dependents, authorizing the return of command-sponsored family members and their household goods before the service member's tour ends.