Managing the Divorce Process
Just about any way you look at it, divorce stinks. There are emotional and confusing legal issues that need to be faced. You can ease the time, costs and heartache of a divorce by understanding what you need to consider as you go through the legal process.
When it comes to the legal side of divorce, a good first step: contacting your legal assistance office to better understand your situation. You have access to free legal assistance whether you live in the U.S. or overseas.
How military legal assistance offices can help with a military divorce
State law and local procedures govern divorce, but there are certain federal statutes and military regulations that may apply to your divorce, depending on where you file. Your installation legal assistance office can provide some of the following free services:
- Legal assistance attorneys
- Advice on legal issues such as divorce and child custody, income taxes, the Servicemembers Civil Relief Act and more.
Service members and their eligible family members also have access to legal advice at no cost through the installation legal assistance offices. However, it is important to note that a specific legal assistance attorney can only offer guidance to either the service member or the spouse, in order to avoid any potential conflict of interest. Depending on service branch, the other married individual can see either another attorney in the same or different location. Legal assistance attorneys do not represent clients in court.
Your rights as a service member
The Servicemembers Civil Relief Act helps protect service members’ legal rights when serving on active duty. Typically, when one spouse serves divorce papers on the other partner, the latter has to respond in a certain time period. However, under the Act:
- A "stay" or postponement of a civil court or administrative proceeding is extended, if the service member proves he or she is unable to attend because of duty; or
- Certain protections on default judgments for failure to respond to a lawsuit or failure to appear at trial are granted.
Military Legal Assistance Attorneys are available to help you understand the legal implications of your divorce. A military attorney cannot represent you or your spouse in a family law court but can refer you to a non-government civilian lawyer. To find a free military legal assistance attorney on an installation near you, visit the Legal Services Locator.
Your rights as a divorced military spouse
Generally, the military views divorce as a private civil matter to be addressed by a civilian court. However, military spouses have access to military legal assistance services at no cost through installation legal assistance offices . In a divorce, a service member and dependent spouse will need separate attorneys to advise them to ensure both parties receive independent and confidential advice, and to avoid any conflicts of interest.
Communications between a client and a legal assistance attorney are private and confidential. 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 and wills.
For 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, you’ll want to consult with a civilian attorney. Military legal assistance offices can help with this.
The Uniformed Services Former Spouse Protection Act is a federal law that provides certain benefits to former spouses of military members. An un-remarried former spouse may receive medical, commissary, exchange and theater privileges under the Morale, Welfare and Recreation program and other benefits if he or she meets the requirements of what is known as the 20/20/20 rule:
- 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 at least 20 years of service that is creditable in determining eligibility for retired pay (the 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 retirement-creditable service.
What to know about divorce overseas
A divorce filed overseas can be complicated, as U.S. courts may not recognize a foreign divorce. It’s usually best to file in the United States. 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. Some things to consider when filing for divorce while living overseas include:
- Talk with a civilian attorney or the military legal assistance office if you own property overseas, such as a house.
- Family members and their property may be brought home at government expense before the service member's tour of duty ends.
If you or your spouse are considering divorce, a good first step is contacting your legal assistance office to better understand your situation.