Divorce is always challenging. However, some circumstances (like one or both spouses serving in the military) can further complicate the process.
When you work with a lawyer familiar with military divorces, handling this situation becomes easier. Even so, it will be helpful to familiarize yourself with some common challenges of military divorce before proceeding.
Deciding Where to File
Non-military couples generally don’t have the option to decide where to file for divorce. They simply must file in their state of residence.
However, if one or both spouses serve in the military, determining where to file for divorce can be difficult. The petition for divorce may be filed in a state where either spouse has established residency.
An active-duty servicemember’s state of residence is typically the state where they lived when they first joined. However, if they’re stationed in another state for a significant period of time, they may elect to establish residency there instead.
Laws related to divorce, property division, and child custody can vary significantly from one state to the next. If you have multiple options and aren’t sure where to file, a family law attorney can offer valuable guidance.
Servicemembers Civil Relief Act (SCRA) Protections
The SCRA provides key protections to active-duty military personnel in various types of civil court matters. Two provisions are especially relevant during divorce:
- Proceedings may be postponed if one spouse can’t attend due to active duty
- Default judgments against an active-duty spouse for failure to respond or appear may be overturned
If a servicemember proves they can’t attend court proceedings because of their service responsibilities, the court may issue a “stay.” This order puts divorce proceedings on hold until the active-duty spouse can meaningfully participate.
The second provision is particularly important for protecting an active-duty spouse’s rights during divorce. In many kinds of civil court cases, the court will issue an automatic judgment (known as a “default” judgment) against a party who fails to respond to a court summons or appear in court.
Under the SCRA, default judgments against active-duty servicemembers can be overturned if their failure to respond or appear was a direct result of their military service. This exception prevents non-military spouses from deliberately timing divorce filings to obtain a default judgment in their favor.
Division of Benefits
Depending on how long the marriage lasted and how much it overlapped with one spouse’s military service, the non-military spouse may be entitled to direct retirement pay, medical benefits, and more.
Three rules generally govern the division of benefits after divorce: the 10/10 rule, the 20/20/15 rule, and the 20/20/20 rule.
The 10/10 Rule
The 10/10 rule comes into play when a marriage meets the following requirements:
- The marriage lasted at least 10 years
- The marriage overlapped with at least 10 years of military service
If your marriage qualifies under the 10/10 rule, the Defense Finance and Accounting Service (DFAS) will pay the non-military spouse’s portion of military retired pay directly. This can make things much easier for you.
The 20/20/15 Rule
The 20/20/15 rule grants the non-military spouse limited benefits after divorce. To qualify, a marriage must meet the following requirements:
- The marriage lasted at least 20 years
- The spouse in the military served for at least 20 years
- There was at least 15 years (but less than 20 years) of overlap between the military service and the marriage
If the 20/20/15 rule applies to your marriage, the non-military spouse is entitled to Tricare medical coverage for one year after the divorce. They’re also eligible to receive their portion of retirement pay directly from DFAS.
The 20/20/20 Rule
If the 20/20/20 rule applies to your marriage, the non-military spouse is generally entitled to full military benefits for life (unless they remarry). Here are the requirements:
- The marriage lasted at least 20 years
- The military member served for at least 20 years
- There was at least a 20-year overlap between the marriage and military service
If you qualify under the 20/20/20 rule, the non-military spouse is entitled to Tricare benefits, commissary and exchange privileges, and theater privileges. Just like with the 10/10 and 20/20/15 rules, they may also receive their portion of retirement pay from DFAS.
Survivor Benefit Plan (SBP) Coverage
When considering the division of benefits in a military divorce, many people forget about Survivor Benefit Plan (SBP) coverage. SBP coverage provides spouses and other dependents with a steady, monthly income after a servicemember’s death.
Many servicemembers and their spouses assume that SBP will continue after divorce. However, if a member of the military wants their ex-spouse to receive SBP coverage, they must change their SBP beneficiary election from “spouse” to “former spouse.” They have one year from the date of the divorce decree to do so.
If you’re married to a servicemember and think your spouse won’t elect for you to continue receiving SBP coverage, you have another option. Divorce courts sometimes order SBP, so you or your attorney may petition the court for benefits.
Disadvantages in Child Custody Decisions
In a military divorce, an active-duty spouse may face major disadvantages during the process of deciding child custody. Above all, courts prioritize the best interests of the child during these proceedings.
With all other factors being equal, courts usually decide that it’s better for a child to stay in one place than to move around the country (and possibly overseas) with an active-duty parent.
Are You Facing a Military Divorce?
Whether you’re an active-duty servicemember or your spouse is, a military divorce comes with unique pitfalls. Gucciardo Family Law is dedicated to helping families like yours achieve the outcomes they deserve. Our award-winning team has decades of family law experience, and we’re ready to put that experience to work for you.
If you’re currently dealing with a military divorce or anticipate one in the near future, contact us to schedule an initial consultation and get the guidance and support you need.
