When marriages end, emotions tend to run high. Mistakes are easy to make when the most important aspects of your life are at stake. Filing for divorce in the military is even more challenging than a typical divorce procedure, as these cases can present their own unique legal issues.
From learning about the rights offered to you as a military member to understanding the process for determining the division of your military pension, educating yourself on the basics of military divorce can pay off both literally and figuratively.
Know Your Rights
In a typical divorce case, when your spouse files for divorce, you have a certain number of days in which to file a formal answer. If you fail to do so, a default judgement can be entered. However, if you are in the military and on active duty, you can choose to request a stay through the Servicemembers Civil Relief Act (SCRA).
The 90-day stay granted by the SCRA can be extended by the court if your military duties continue to prevent you from participating in the divorce process in a timely fashion. In order to request a stay, you will need to submit a written request in the form of a letter explaining your circumstances and how they prevent you from having a fair chance to participate in your divorce proceedings.
Choosing the Right Court when Filing for Divorce in the Military
In a nonmilitary divorce case, the filing spouse would simply file in whichever state they have resided in for the past six months or longer. When divorcing in the military, the issue of jurisdiction becomes more complicated, in part due to the consideration of military pensions.
The division of military pensions varies by state, but the state in which the military member resides reserves the right to divide their pension. The state that the spouse resides in may not have that authority. Also, the location of the children of the marriage may impact your decision on where to file for divorce. Before you find out how to get a divorce in the military, you need to figure out where to file that divorce in order to most benefit your goals.
Divorce and Your Military Pension
The division of your military pension may become the most complicated issue in your divorce. A common misconception is the idea that a non-military spouse cannot receive a portion of their military spouse’s pension if they have been married for fewer than 10 years. This is incorrect. While courts commonly default to a 10-10 rule when dividing military pensions, a judge can award any share he or she finds equitable.
The 10-10 rule refers to a situation where you have been married for 10 years or longer while the military spouse was on active duty (or performing credible service in the Reserves or Guard). If this is the case, upon the creation of a court order, your spouse will receive their share of your military pension directly from the Defense Finance Accounting Service. If a judge awards a share of a military pension without meeting the 10-10 rule, you will be responsible for direct payments to your ex-spouse.
Military Legal Assistance
While legal assistance attorneys provided by your military branch will not be able to represent you in your divorce, they can offer many other helpful services throughout the process. Legal assistance attorneys can write formal correspondence, draft legal documents, and negotiate on your behalf. He or she can also communicate directly with your civilian divorce attorney, creating a team of professionals working to protect your interests in your divorce case.
It is highly recommended in all divorce cases that the military member seek civilian counsel, whether or not military legal assistance is used. Only a civilian divorce attorney with military knowledge will know the intricacies of the civilian and military divorce processes and the difference between the two. He or she also can represent you in court, while legal assistance counsel cannot. It is never recommended to attempt to represent yourself in a military or civilian divorce case.
When you are in the military and facing a divorce, you need a firm advocate in your corner who isn’t afraid to stand up for your legal rights. Contact an experienced civilian divorce attorney to help you protect your assets and your future to the fullest extent of the law.