What's So Special About A Military Divorce

By Staff Writer

A military divorce involves special issues and concerns that are not present in a civilian divorce. If you or your spouse are an active duty member of the military, reserve or guard, or if either of you has retired from the military, you must be aware of these special factors and considerations so that your rights are adequately protected. Because even experienced attorneys may not have had tremendous experience with a military divorce, you should take care in retaining an attorney who is well versed in this area of the law.

In general, the same laws and procedural requirements that apply to civilian divorces are applicable in a military divorce. You will, generally, continue to be bound by the same laws and requirements that are applicable to non-military divorces. You should also be aware that, being in the military, does creates additional procedural requirements that must be adhered to. For example, if you or your spouse is on active duty, your judgment of divorce must contain specific language to ensure that certain requirements of the Soldiers’ and Sailors’ Civil Relief Act have been adhered to.

Being in the military does offer some advantages over civilian cases. Unlike civilian litigants, who are often bound by set rules regarding where and when they can file for divorce, military personnel may be entitled to special considerations. All states, for example, have residency requirements that control how long an individual must be domiciled in that state before they may commence an action for divorce. In some states, the residency requirements for military personnel who are stationed in that state are shorter than those required for non-military couples. Being in the service also may create the opportunity for the service member to choose which state in which he or she files for divorce. This is known as “forum shopping” and, if available, will allow the service member the opportunity to select a jurisdiction with laws which are more favorable to his case.

Military divorces may also have disadvantages such as adjournments and delays. If either you or your spouse is on active assignment and is unavailable to appear in Court or participate in the action, your case may face unusual delays that do not typically encumber civilian divorce cases.

As you are likely aware, being in the military may entitle you and/or your spouse to special benefits, such as military retired pay, disability pay and/or separation bonuses. Receipt of and division of these benefits are governed by additional requirements and procedures that are not automatically encountered in civilian divorces. It is crucial that you be aware of these requirements and procedures so that your rights can be adequately protected. For example, pensions and retirement benefits are generally considered marital property in many states. In structuring settlements or requesting a distribution of these benefits from a Court, parties typically consider when they will be entitled to receive the benefits. Some types of retirement plans allow for the funds to be automatically available (subject to potential tax consequences). This is not true of military retired pay. By law, military personnel cannot begin receiving these retirement benefits until the requisite number of years have been attained. The practical effect is that the payment of retirement pay cannot be received until the service member has actually retired.

To ensure that you are fully versed in the laws and procedures that pertain to your divorce, you should consult with an experienced, knowledgeable attorney. It is also wise to educate yourself. There are many books and articles devoted to the topic of military divorces.