MILITARY DIVORCE INFORMATION – Part One
I’ve been meaning to write a post for contribution to Divorce Saloon for a while about military divorce and what a former spouse needs to know and also what the military person needs to know, as well, about divorce and the military. And it’s not all pomp and circumstance.
First of all, the fact that you or your spouse is in active service in the military can definitely slow up your divorce due to the Servicemember’s Civil Relief Act(“SCRA”) which basically ” is intended to postpone or suspend certain civil obligations to enable service members to devote full attention to duty and relieve stress on the family members of those deployed servicemembers.” This federal law applies to all branches of the military, including, Army, Navy, Air Force, Marine Corps, Coast Guard and National Guard as well.
Some legal experts say that the SCRA does not apply to divorce and family law matters only other civil actions such as credit card debt proceedings, Landlord tenant proceedings, tax proceedings and other civil matters. But others disagree. It probably depends on the state you are in because state law can give its citizens broader rights than federal law. But rest assured that if you can’t serve your spouse the divorce papers because he or she is deployed and in active duty, you may have no other recourse but to wait till he or she returns to file your divorce action. Because no service means no divorce, pretty much. But even if service is effected, your spouse can request a stay and will be granted one under the Servicemember’s Relief Act, for 90 days or longer. And that will “stay” your divorce proceedings for at least 90 days or longer. In the Military Divorce Handbook JAG colonel Mark E. Sullivan points our the reasoning behind this law. He states “‘The United States Supreme Court’ has said that the statute should be read with an eye friendly to those who dropped their affairs to answer their country’s call.’ Le Maistre v. Leffers, 333 U.S. 1, 6 (1948)'”
BTW, that is why the standard divorce complaint has language to the effect of “my spouse is not in military service” or “my spouse is in active military service.” The court has a duty to ascertain this for EVERY divorce case before it goes to judgment.
If the Serviceman can show that his interest is “materially affected” by going ahead with the divorce without him or her present, the court has discretion to give an indefinite stay.
So, it doesn’t seem that military divorces move as fast as when you are a civilian, by any means.
With regard to other rules of court and procedure for military divorces, the same rules apply in terms of service requirements and residency requirements and grounds, etc, but I’m certain you can understand why it can be slower because, logistically, when someone is out on the battlefield in active duty, the last thing they have the time or energy to deal with is dealing with divorce papers – whether their own or someone else’s. And because of the work they do for this country, we should all understand and respect this rule of law.
Military Pensions as Marital property
As with any other divorce case, the issue of property settlement is usually the biggest one, second only to custody issues. In formulating a property settlement, one has to know what are the assets in the marriage. One of the big ones in military divorces is the pension. Apparently, the Supreme Court decided back in the 1980s that the military pension is not a marital asset. That was news to me. But read this:
On June 26, 1981, the U.S. Supreme Court ruled that military retired pay could not be treated as community property in divorce cases. In response, Congress enacted the Uniformed Services Former Spouses Protection Act (USFSPA) which decreed that state courts could treat military retired pay as property in divorce cases if they so chose. www.military.com
So, while the federal government has said it is not community property, states have the ability to give more rights than the feds, and so the state courts have discretion on this issue. But the bottom line is, if you serve your spouse through one of his or her commanders and they refuse to accept service, you are out of luck. You can’t get the divorce until your spouse returns home. So sorting out how this asset will be treated will likewise have to wait.
Uniform Services Former Spouse Protection Act
“Under the USFSPA, a former spouse, like a current spouse, can be designated as a Survivor Benefit Plan beneficiary. The former spouse however, must elect “former spouse coverage” from the appropriate military finance center within one year of the date of the final divorce decree…
“In order to qualify for continued benefits a former spouse must show that the service member served at least 20 years of creditable service, that the marriage lasted at least 20 years and that the period of the marriage overlapped the period of service by at least 20 years. A former spouse who meets these requirements is known as a 20/20/20 former spouse and is entitled to full commissary, exchange and health care benefits. These benefits include TRICARE and inpatient and out-patient care at a military treatment facility. Former spouses who do not meet these requirements lose their commissary and exchange privileges once the divorce is final.” www.military.com
Updates to follow
Copyright 2010 Divorce Saloon. All rights reserved.