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MILITARY DIVORCE LAW

Trust Fleischer & Ravreby’s expert family law attorneys to help you make important decisions about your divorce, child custody and support, spousal support, and the division of property and benefits including military pensions.

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One-quarter of all active duty United States Navy and United States Marine Corps personnel are based in San Diego County. Add the large number of veterans, retirees, reservists and National Guard, and the significant influence of the military affects our way of life in many ways.

Military divorces face many of the same issues as civilian divorces, but there are special rules and requirements that apply to service personnel and their spouses when they get divorced. These including residency and filing requirements, child custody and support, and the division of property, especially military pensions.

If you are a member of the Armed Forces thinking about a divorce, you have several critical decisions to make.

Can You File For Divorce Now?

Unlike a civilian divorce, both state and federal laws affect the divorce of a military couple. Federal laws may affect the jurisdiction of the divorce, or how military pensions are divided. State laws generally control how alimony and spousal support is determined.

Under the Servicemembers Civil Relief Act (SCRA), American service men and women cannot be sued or begin divorce proceedings while on active duty or for 60 days following active duty, depending on the discretion of the family law court in their home state. This is to allow those serving in the military to focus on their role defending the country. Spouses making the decision to divorce will need to consider the timing of filing if the active-duty spouse is on deployment or is about to start deployment.

Where to File For Divorce

Civilians facing divorce file in the state where they live. If you are a member of the military, it isn’t always that simple. In the military community it is common for a couple to be from one state, married in a second state, living in a third state and own property in a fourth state.

It is not uncommon for the active duty service member to be stationed in on location, and the spouse and children living in another across state lines or in different countries.

If the couple has recently been moved by the military to the state where they live, they may not have been there long enough to establish residency.

California allows a military member or their spouse to file for divorce if the service member is stationed in California, whether either member of the married couple are legal residents. Military members and their spouses can also file in the state where the spouse filing resides, or where the military member claims legal residency if this is different.

This is a critically important decision for the couple filing for divorce. Decisions about child custody and support, spousal support and property distribution are controlled by the laws in the state where the divorce petition is filed. These can be different from state to state.

Couples should consult with a divorce attorney experienced in representing military cases to help make a decision where the filing should take place depending on the issues facing the couple. Among the factors that can help you decide:

  • Where you vote
  • Where your driver’s license was issued
  • Where you attend church, synagogue, mosque or other house of worship
  • Where you or your children qualify for in-state college tuition
  • Where you own property, or pay property taes
  • Where you own a business

Consider also the time and expense of traveling to another state to file legal documents, hold meetings with your family law attorney, and if the case goes to trial in court, attending meetings, depositions, and hearings. You may need to take time from work. This could make filing in another state cost-prohibitive even if the laws are favorable to you.

How Divorce Affects Military Pensions and Benefits

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Military pensions are subject to division between spouses in the event of divorce. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), state courts may be allowed to treat military retirement pay as either sole or community property depending on the laws in the state where the divorce is filed. The division of the retirement pay is generally determined and awarded under the specific state laws.

If you have been married at least 10 years or more, and the marriage coincided with at least 10 years of military service, the former spouse of the military member may be paid his or her share of the military retirement directly by the federal government. If the marriage lasted less than 10 years, a court may still authorize direct payment to the military spouse depending on your circumstances.

The spouses of former military personnel may also be eligible for medical benefits, and commissary and exchange privileges on military bases if the marriage lasted 20 years or more under something referred to as the “20/20/20 Benefits” rule.

The former spouse of a service member qualifies for medical benefits and commissary and exchange privileges if all of the following qualifications are met:

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  • The parties have been married for at least 20 years (date of marriage to date of divorce decree or annulment);
  • The service member performed at least 20 years of service creditable for retirement pay; and
  • There is at least a 20-year overlap of marriage and the military service.

If a former spouse is enrolled in employer provided medical insurance, he or she is not eligible for military medical care or insurance. The former spouse can decline employer provided insurance and will remain eligible for military medical and insurance benefits if there is an option.

There is a second tier of benefits for former military spouses under the “20/20/15” rule, which reflects a shorter period of overlap between the marriage and military service. Those qualifications are as follows:

  • The parties have been married for at least 20 years (date of marriage to date of divorce decree or annulment);
  • The service member performed at least 20 years of service creditable for retirement pay; and
  • There is at least a 15-year overlap of the marriage and military service.

A so-called “20/20/15” former spouse who has his or her own employer-sponsored medical insurance is NOT eligible for the one-year transitional military provided medical coverage. However, if the employer plan is optional, the former spouse may decline that insurance and choose to participate in the one-year benefit instead.

These ex-spouses are not eligible for commissary, exchange, or base recreational privileges. Children residing in the household of a separated spouse continue to be eligible for commissary privileges only until the divorce is final, even if the sponsoring parent provides or maintains the household. Children continue to be entitled to use the exchange and MWR if they are dependent on the sponsor for over half of all their support.

Special Rules in Military Divorces for Spousal and Child Support

The military has special rules concerning spousal maintenance (alimony) and child support. These rules are designed to ensure a service member’s family support obligations beyond a divorce or separation.
A court may enforce spousal and child support obligations in a number of ways including by:

  • Court-order
  • Garnishment
  • Voluntary or Involuntary Allotment

A court may also require the providing spouse to maintain life insurance that would cover child or alimony support payments for a specific period.

Choices for Fault Versus No Fault Divorce

California and most states are “no fault states.” This means a marriage can be ended without the need to prove either party did something wrong or explain any reason for the divorce such as adultery, fraud, or abuse. The couple can list the general “irreconcilable differences” as the reason.

There are some states that also offer a “fault” option for your divorce. In these divorces, one party must state a reason for the divorce, which generally places blame on the other spouse. It can allow the person who considers themselves wronged (the “innocent party”) to claim more than a 50-50 share of the marital assets or more spousal support. Some states also have a shorter required separation period in a fault divorce.

Don’t Make Divorce Decisions Alone – Get Expert Help from Fleischer & Ravreby

Military divorces require special knowledge of the laws that apply to them, which are different and offer various options that do not apply to civilian divorce. These can work in your favor, but they can also work against you. A poor decision can also cost you far more money in the long run.

While every branch of the military has legal assistance lawyers located on most military bases, they may be able to answer some of your questions and help with certain documents, but they cannot represent you in a divorce. Only a private lawyer can see you through this difficult transition.

It is your best interests to work with an experienced divorce lawyer who can learn about your individual situation and help you make the best possible decision, including the decision whether to seek Alternative Dispute Resolution such as Collaborative Divorce and avoid a lengthy court battle.

Fleischer & Ravreby’s expertise in military divorce law will help you assess your situation and make choices in the best interests not only for you but for your entire family, setting the stage for a positive, healthy future.

Contact Fleischer & Ravreby for Your Military Divorce Today

Contact the lawyers at Fleischer & Ravreby to ensure your interests are protected and you make fully informed decisions about your divorce. Call 858-720-8250 today or email us to ensure representation in your military divorce case.


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