Military divorce involves all the same emotional, financial, and legal challenges as any divorce, but with an additional layer of complexity created by federal laws, military regulations, and the unique circumstances of military life. From the division of military pensions and benefits to jurisdictional issues and deployment considerations, service members and their spouses face legal questions that most civilian divorce attorneys are not equipped to handle.
This guide covers the special legal considerations that arise in military divorce, including how military pensions are divided, the Servicemembers Civil Relief Act, custody challenges related to deployment, and how to find an attorney who understands the unique intersection of military and family law.
Jurisdictional Considerations in Military Divorce
One of the first challenges in military divorce is determining where to file. Military families often have connections to multiple states due to frequent relocations, and the choice of jurisdiction can significantly affect the outcome of the divorce.
Generally, a military divorce can be filed in the state where the service member is stationed, the state where the service member claims legal residency or domicile, or the state where the non-military spouse resides. Each option has different implications for property division, alimony, and child custody, as these issues are governed by state law. In some cases, the most favorable jurisdiction for one spouse may be the least favorable for the other, making the filing decision a strategic one that should be discussed with an experienced military divorce attorney.
The Servicemembers Civil Relief Act (SCRA) provides important protections for service members involved in legal proceedings. Under the SCRA, a service member can request a stay or postponement of civil proceedings, including divorce, if military duties prevent them from participating. This protection is intended to ensure that service members are not disadvantaged by their inability to attend court hearings due to deployment or other military obligations. The stay can be granted for the duration of the military service plus 60 days, and additional stays may be available.
Division of Military Pension and Retirement Benefits
Military retirement pay is often the most valuable asset in a military divorce, and its division is governed by both federal and state law. The Uniformed Services Former Spouses' Protection Act (USFSPA) allows state courts to treat military retirement pay as marital property subject to division in divorce. However, the USFSPA does not require that retirement pay be divided; it simply gives state courts the authority to do so.
The 10/10 Rule
The USFSPA includes an important provision known as the 10/10 rule. If the marriage lasted at least 10 years during which the service member performed at least 10 years of creditable military service, the former spouse can receive their share of the retirement pay directly from the Defense Finance and Accounting Service (DFAS) through direct payment. If the 10/10 requirement is not met, the former spouse is still entitled to their share of the retirement, but the service member must make the payments directly.
Calculating the Former Spouse's Share
The most common method for dividing military retirement is the marital share formula, which calculates the former spouse's share based on the number of months of marriage that overlapped with military service divided by the total months of military service at retirement. This fraction is then multiplied by the disposable retired pay to determine the former spouse's monthly payment.
Recent changes to federal law have also introduced the frozen benefit rule, which limits the former spouse's share to the service member's rank and years of service at the time of the divorce, rather than allowing them to benefit from post-divorce promotions and pay increases. This is an important consideration that should be addressed in any military divorce settlement.
Military Benefits for Former Spouses
In addition to retirement pay, former military spouses may be entitled to other benefits depending on the length of the marriage and its overlap with military service.
The 20/20/20 Rule
Former spouses who were married for at least 20 years to a service member who served at least 20 years of creditable service, with at least 20 years of overlap between the marriage and the service, are entitled to full military benefits. These include TRICARE health insurance, commissary and exchange privileges, and military identification card. These benefits continue until the former spouse remarries before age 55.
The 20/20/15 Rule
Former spouses with at least 20 years of marriage, 20 years of military service, and at least 15 years of overlap are entitled to one year of transitional TRICARE coverage after the divorce. After that year, they can purchase continued TRICARE coverage at their own expense.
Survivor Benefit Plan (SBP)
The Survivor Benefit Plan provides continued retirement pay to a designated beneficiary after the service member dies. In divorce, the court can order the service member to designate the former spouse as the SBP beneficiary, ensuring that the former spouse's retirement share continues even after the service member's death. This is a critical issue that should be addressed in every military divorce involving retirement pay.
Child Custody and Deployment
Child custody in military divorce presents unique challenges related to deployments, relocations, and the service member's unpredictable schedule. Several important considerations apply.
Deployment and custody modifications: Many states have enacted laws that prevent a service member's deployment from being used as a basis for permanently modifying custody. These laws recognize that deployment is a temporary condition and that using it to change custody would unfairly penalize service members for fulfilling their military obligations. However, temporary custody modifications during deployment are common and necessary.
Family Care Plans: Single military parents and dual-military couples are required to maintain a Family Care Plan that designates a caregiver for their children during deployments and other situations where the parent is unavailable. In divorce, the Family Care Plan should be coordinated with the custody agreement to ensure consistency and avoid conflicts.
Relocation and PCS orders: Military families relocate frequently due to Permanent Change of Station (PCS) orders. When divorced parents live in different locations and one receives PCS orders, the custody arrangement may need to be modified. Most custody agreements in military divorce include provisions for how relocations will be handled, including notification requirements, rights of first refusal, and adjustments to the parenting time schedule.
Finding the Right Military Divorce Attorney
Military divorce requires an attorney who understands both family law and the unique aspects of military life and federal military law. When choosing an attorney, look for someone with specific experience handling military divorces, knowledge of the USFSPA, SCRA, and military benefits regulations, familiarity with DFAS procedures for dividing military retirement, understanding of the unique custody challenges related to deployment and PCS, and experience working with military clients and understanding military culture.
Many military legal assistance offices can provide initial guidance, but they typically cannot represent you in divorce proceedings. They can, however, help you understand your rights and refer you to qualified civilian attorneys in your area. Our attorney directory includes attorneys with specific military divorce experience.
Frequently Asked Questions
Can I get divorced while my spouse is deployed?
Yes, but the deployed spouse can invoke the SCRA to request a postponement until they can participate. If the deployed spouse waives their rights, the divorce can proceed during deployment.
Is my spouse entitled to half of my military retirement?
Not automatically. The former spouse's share depends on the length of the marriage, the overlap with military service, and your state's laws. The division uses the marital share formula and often results in less than half of the total retirement benefit.
Does my former spouse lose military benefits if they remarry?
Under the 20/20/20 rule, remarriage before age 55 causes loss of TRICARE and commissary privileges. However, the retirement pay share awarded in the divorce is not affected by remarriage.
Can the military help me with my divorce?
Military legal assistance offices can provide general information and referrals but cannot represent you in divorce proceedings. Many installations also offer free counseling services for families going through divorce.
For more information, visit our Legal FAQ page or browse our attorney directory.
DivorceGenie Editorial
Divorce Real Estate Specialist & Founder of Cooperative Divorces