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How do I proceed with a military divorce?

October 3, 2017

Military personnel who are attempting to get divorced face the same procedures that civilians go through. However, military divorces involve some additional factors. Service members have certain rights and obligations with regards to where a divorce will be filed, military pension and other benefits, and child custody. Before you proceed with filing for a military divorce, you need to take these factors into consideration.

 

Where to File For Divorce

 

Among all the tasks that couples must consider before filing for divorce, selecting the right state from where to file for divorce is the most important. Divorce laws vary depending on which state you are in. Military members and their spouses are faced with three choices with regards to where to file for divorce:

 

  • The state where the military member is stationed
  • The state where the military member is a legal resident
  • The state where the service member’s spouse resides

Whichever state you choose to file for a divorce, the grounds for divorce, child support, child custody, and property distribution will be determined by the laws of that particular state. For example, if you choose to file for a divorce in Puerto Rico, the laws here do not allow military pension to be divided between a service member and their spouse. Therefore, if you are the spouse of a service member, filing for a divorce here would not be a smart choice.

 

Service Members’ Protection against Lawsuits

 

When filing for divorce, another issue that needs to be considered is the protection afforded to service members with regards to lawsuits. You need to get your timing right. According to the Service Members Civil Relief Act, military members have immunity against lawsuits including divorce proceedings. This protection allows a service member to focus their energies on defending the nation. A court may delay divorce proceedings for the period that a service member is on duty and for up to 60 days after they have completed their active duty.

 

Military Pension Considerations

 

Military pensions, like civilian retirement proceeds, may be subjected to division between spouses during a divorce. According to the Uniformed Services Former Spouses’ Protection Act, courts may consider military retirement pay as community or sole property depending on the laws of the state.

 

Payment of a former spouse’s share of pension benefits is paid through the Defense Finance and Accounting Service. A former spouse qualifies to receive these benefits if they were married to a service member for ten yearsduring which they were in service. This is called the ten year rule.

 

When filing for a military divorce, you need to determine the rules and laws regarding the payment and distribution of pension and other benefits.

 

Child Custody Considerations

 

The military has laws that apply to situations where a child’s caretaker is deployed. Such situations require a family care plan. It sets out what is to happen to a service member’s children when they are deployed. When filing for a military divorce, you should consult your attorney about a family care plan and how it will affect child custody.

 

The Take Away

 

Military divorce proceedings are a bit more complex than civil proceedings. When filing for a divorce, you need to focus on the state where you are filing, some of the protections offered to the military with regards to lawsuits, military pension considerations, and child custody considerations. In any case, it is advisable to have a seasoned divorce attorney to assist you throughout the process.

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