Military Divorce: Rules for Active Duty Service Members

Having a spouse in active military service can affect your divorce. Even if you mutually decided to split, active military status could affect how you need to file and your case’s timeline and outcome.

Whether you are looking to file a simple no-fault divorce or your case is more complex, our firm can help. We will walk you through your divorce in a professional and caring manner, and we’ll make sure you stay well informed.

How is divorce different for active duty service members?

The Federal Service Members Civil Relief Act of 2003 requires a person seeking a divorce to state their spouse is not a member of the U.S. armed forces. This rule prevents spouses from divorcing military members who would be unable to attend divorce proceedings.

If your spouse is a member of the military, you can pursue a divorce as long as they consent. They must also sign a defendant’s affidavit of consent.

Uniformed Services Former Spouses’ Protection Act

Because you and/or your spouse is an active member of the military, the Uniformed Services Former Spouses’ Protection Act (USFSPA) may affect how you divide your assets. The USFSPA addresses questions about former spouses’ eligibility for base privileges such as:

Commissary and exchange
Health care coverage and other benefits
Military retirement pay

Under the USFSPA, a former spouse does not automatically get a portion of the service member’s retirement pay, and there are specified requirements to qualify.

Getting the Right Help

Aside from a few added rules, the military divorce process is much like civilian divorce. You will need to agree on arrangements for the following:

Division of homes, vehicles, money, and other marital property
Division of credit card bills, loans, and other debt
Alimony, also called spousal support
Child custody
Child support

Many of the forms you complete will also have the same information. In some states, you may file for a no-fault divorce if you and your spouse have no disputes. If your opinions differ regarding child custody or dividing assets, however, an experienced divorce lawyer can mediate your dispute and help you draft a settlement agreement. After you sign, the document is legally-binding.

Frequently Asked Questions about Divorce and the Service Veteran

Where should our military family file for divorce?

A common question for families with spouses in the service is determining where to file for divorce. Many military families move around a lot and do not necessarily meet the minimum time requirement to establish residency in order to file. For such couples, there is a presumption that where they enlisted can be used and is their home jurisdiction. Unless there is clear evidence that the couple intended to put down roots elsewhere.

If you are a military member and are deployed, you likely have a few options for jurisdiction when filing for divorce. These might include:

File in the state where you last resided for six months or more
File in the home state where you pay taxes
Allow your spouse to file where he or she resides in the U.S.
If you’re stationed in the U.S., file in the state in which you are stationed, even if you’re not a resident of that state.

Many military members have these additional options, because states frequently eliminate the residency requirement when an active duty service member wants to file for divorce.

How does being a service member complicated martial property laws?

When going through a divorce clients often ask attorneys what can and will be divided. The general rule is that all items considered “martial property” are divisible; a definition we get from the law. Of course there are exceptions to this rule and as a result, however this is not always cut and dry. This becomes even a bit more complicated when one party (or both) are service members.

Specifically, this becomes an issue when dealing with military retirement benefits. Military retirement benefits are subject to division as marital property, military disability payments however, are not. These two intersect when a service person opts to change his or her retirement payout into disability payments. What a spouse previously thought he or she was entitled to could now be protected property. It is important to know what is classified as what type of benefit and plan for an unexpected change.

How a Military Divorce Lawyer Can Assist In Your Case?

Family life is complicated enough when one spouse is active in the military. However, when a military couple divorces the complications can become even more significant.

A divorce attorney can help a divorcing military spouse:

Determine if a divorce proceeding can be filed in Pennsylvania. Generally, you can file for divorce in Pennsylvania if one spouse lives in the Commonwealth or if a military spouse has a military home of record in Pennsylvania for at least six months before filing for divorce.
Comply with the mandatory waiting period for military families. Typically, there is a 90 day waiting period to obtain a divorce if one spouse, or both spouses, are active in the military. This waiting period applies even if you have been living apart for more than two years.
Resolve custody, property and financial issues. Many divorce issues facing military families are the same as those faced by civilian families. Child custody and visitation issues must be resolved, property must be divided and alimony and/or child support arrangements must be finalized.

Contact Our Lawyers for Assistance

We can help if you or your spouse is an active service member in the United States Army, Navy, Air Force, Marines or Coast Guard. Contact Petrelli Previtera, LLC at (866) 465-5395 for professional legal advice.

Military Divorce