A significant number of marriages to military personnel end in divorce. About 7.2 percent of military women reported a divorce in fiscal year 2013, according to Department of Defense (DoD) data. The overall divorce rate among men and women was 3.4 percent. For every 100 troops who were married at the start of the fiscal year, about three or four notified the DoD about a divorce and officially changed their status for purposes of military benefits.
A divorce can be emotionally wrenching, especially when children are involved. Add to this the stress of a family divided by overseas deployments, it’s a situation that needs to be handled with care. Depending on the circumstances, a military divorce might not be any no more complicated than two civilians getting divorced (especially if there are no children and the military spouse has not served for a long time), there are laws that concern only service members and their spouses.
Military Divorce Law
Military divorces are governed by both state and federal laws.
- Federal laws can impact in which jurisdiction the divorce takes place or how a pension (if there is one) might be apportioned,
- State laws may spell out how much alimony and child support will be paid.
Active-duty service members can get some protection from divorce proceedings in most cases. Under the Servicemembers Civil Relief Act (SCRA), members of the military can seek postponements while on active duty or for 60 days following active duty (if the judge agrees). The SCRA does not affect the judge’s decision on the merits of a divorce case, only if a delay will be granted.
Divorce filings and procedures
Before a court can grant a divorce, it must determine if it’s the right court (or jurisdiction) with authority to render a judgment on the case. For divorces, jurisdiction is normally where the couple lives. For California, the couple must reside in, or a spouse must be stationed in, the state for there to be jurisdiction in a divorce case.
Federal law doesn’t impact the grounds for a divorce. Under California law, a divorce can be contested (there isn’t an agreement to divorce, or all the related issues such as alimony and child support haven’t been resolved) or uncontested (both spouses agree to divorce and agree to resolved related issues).
The spouse on active duty needs to be personally served with a summons and a copy of the divorce action for a California court to have jurisdiction over the case. If the divorce is uncontested, personal service is not required if the active duty spouse signs and files a waiver affidavit acknowledging the divorce action.
Who gets what from whom
State law will govern property distribution (though federal law can come into play if retirement benefits are involved), child custody and support issues. Under California law, child support and spousal support/alimony awards cannot be more than 60% of a military member’s pay and allowances. California child support guidelines, worksheets and schedules are used to determine the amount of child support to be paid. There also special rules by the military concerning alimony and child support designed to ensure a service member’s family support obligations beyond a divorce or separation.
VA disability benefits will not be directly allocated to the non-service spouse. However, the judge may consider the disability payments when calculating child support, maintenance and property and debt division.
Military pensions, like civilian pensions, are subject to division between spouses in the event of divorce. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), state courts may treat military retirement pay as either sole or community property. California law states a pension is community property if it was earned during a marriage.
Who gets how much of the pension is up to California law, which divides up the pension either by “reservation of jurisdiction” or “cash out.”
- Reservation of Jurisdiction: This is the more common way to handle pension plans. Due to a court order, when the military spouse retires the ex-spouse receives a portion of each pension payment. This portion is determined by dividing the number of years the couple lived as husband and wife by the number of years the military spouse served in the military. The result is the community property percentage of the pension plan.
- Cash-out: This method involves obtaining “actuarial evaluation.” An actuary is hired to review the pension as well as the accumulations on the pension account, and determines the “present value” of the community share of the pension plan. With a cash-out, the military spouse receives the pension in its entirety and the other spouse receives other community property assets of equivalent value.
Payment of the ex-spouse’s share of the retirement pension is paid directly by the Defense Finance and Accounting Service (DFAS) if there was at least ten years of marriage with an overlapping ten years of military service. No matter how long the couple was married, a judge could order direct payments to the ex-spouse who had been married for less than ten years as an offset (the military spouse would make the payment, not DFAS).
In addition to pension benefits, ex-spouses of retired military personnel may also get full medical, commissary and exchange privileges if,
- The couple was married for at least twenty years,
- The service member performed at least twenty years of creditable service toward retirement pay, and
- There was at least a twenty year overlap of the marriage and military service.
Given the many issues involved in a military divorce, especially when pension benefits are involved, spouses should retain attorneys to represent their interests. This isn’t just to prepare for a TV style, scorched earth courtroom scene of a divorce, but to help the parties resolve their differences.
If communications have broken down between the couple, it may be easier for attorneys to help their clients understand the facts, laws, issues and benefits of avoiding litigation. Even though a service member may be far from home, because of e-mails, Skype and telephone calls, there can still be communications with an attorney. If issues can’t be worked out, mediation is often successful at resolving difficult divorce issues.