If you are going through a divorce and are an active or former military servicemember, you face different challenges than the average civilian. While you must go through the same property division processes, custody, and support determinations, you also have to deal with special laws that apply specifically to servicemembers. With issues like being on active duty, frequent moves, and military pensions, getting divorced can be overwhelming for those in the military.
Burch Shephard Family Law Group has experience helping servicemembers and spouses of service members navigate the difficult divorce process. Keep reading for an overview of the military divorce process and what you should know when preparing to file for divorce.
Where Do Military Servicemembers File for Divorce?
Military families tend to move around a lot. Additionally, when one person is deployed, figuring out where to file for divorce can be difficult. Civilians are limited to filing where they live. But, if you are a military servicemember and need to file for divorce, you have a few options. You can file in the state where you are officially domiciled or where your spouse resides. You may also select another jurisdiction that you both agree on.
When figuring out where to file for divorce, it is typically recommended that you file in the state where you live. You can also consider filling in the state where you vote, have vehicles registered, etc. However, for military service members, this may not be the most convenient location. For example, if you are on active duty or deployed elsewhere, you may not be able to return to your permanent residence to attend hearings or meet with lawyers. In cases like these, you and your former partner should find a more convenient jurisdiction and one on which you both agree.
What Happens to My Military Benefits and Pension?
Military benefits represent significant assets. When going through a divorce, your military benefits are subject to property division, but they are not subject to state property division laws. Instead, the division of military benefits and pensions is governed by military and federal laws. When it comes to determining how military benefits and pensions are handled in a divorce, several things are considered.
Considerations when dealing with military benefits and pensions include:
- How long you were married
- The date of dissolution
- The military servicemember’s record
- Any residence or jurisdiction issues of either party
- What benefits are involved
- Related protections under the Civil Relief Act
During a military divorce, it is also important to understand how the Uniformed Services Former Spouses Protection Act (USFSPA) will affect the handling of military benefits and pensions. Under this act, states are allowed to divide military disposable retired pay as marital property and allows some spouses to receive their portion of awarded retired pay directly from the government. It also allows former spouses to access medical care and other benefits, among other protections. However, it is important to remember that the USFSPA does not automatically entitle a servicemember’s former spouse to these things.
For more information on the USFSPA, review the government’s Legal Assistance for Military Personnel page here.
How Do I Handle Child Custody Matters?
Just like any divorcing couple, you will need to come to a custody and child support agreement with your child’s other parent. While this is always a fraught process for parents, it can be even more complicated when one or both parents are in the military. In addition to common concerns about how custody will be shared, military parents must address unique and sometimes unexpected challenges.
When developing your custody agreement and parenting plan, you should consider:
- Normal visitation and parenting-time schedules
- How custody will be handled if one parent is deployed
- How relocations will be handled
- Where the child’s primary residence will be
- How school holidays and summer vacations will be split
During a divorce, many military families often find it helpful to develop a standard parenting plan and an alternate parenting plan that can be relied on when something unexpected happens, such as a deployment or relocation. It is also recommended to name a guardian for your child, especially if you are in a situation where both parents are in the military or when the military servicemember has sole custody. In some cases, the servicemember may be required to have a formal family care plan on record with the military to handle situations like these.
If you are going through a divorce and are in the military, do not hesitate to reach out to a lawyer. An experienced Orange County attorney, like ours at Burch Shephard Family Law Group, is an invaluable resource to you and can provide you with the guidance you need during this difficult time.
