Military Divorce: Where Do We Even Start?
We all know the struggle of military life: constant deployments, TDYs, random shifts, and all that comes along with one (or both) spouse being married to military. Those struggles can lead to marriage battles that are tough to navigate; people just grow apart or fall out of love; perhaps there was cheating or abuse. Regardless of the specific cause(s), there are, unfortunately, times when divorce may be necessary. In such a case, it is important that people understand how being part of a military family makes the divorce process a little more complicated.
Do I need an attorney? Can the base legal office help?
Divorce proceedings can sometimes be handled without a lawyer (in pro per, or pro se), however, it is usually a good idea to retain a reputable attorney in legal matters whenever possible. The Judge Advocate office on base will not be able to represent you in a divorce proceeding, and any advice they may give you is likely to be general, at best. That's because the attorneys in the JAG office are not required to be licensed in every state they are stationed in, so their knowledge of each state's law may be different than a practicing attorney in your state.
The legal office on your installation can answer general questions, however, some will not provide aid to BOTH parties—that is, first come, first served in your household. Base legal does not represent either party, but can help direct you to the forms and filings you may need if you plan to file without the help of an attorney.
However, it is a good idea to seek legal counsel from a licensed family law attorney who has experience with military divorces in the state you are filing. If you cannot afford to retain an attorney for the entire divorce process, you can try checking out legal aid organizations, and/or courthouses in the area you will be filing in. Many legal aid organizations and courts offer clinics where qualified individuals will help those who cannot afford attorneys to properly prepare their paperwork for filing and understand the applicable laws. Another idea is meeting with an attorney for a consultation. Many attorneys will charge a flat fee (or no fee!) for a one hour consultation where you can ask questions and seek advice on the issues involved.
Where should I file?
One question many people may have is: where do I even file? According to Military OneSource, service members and their spouses can file for divorce “in either the state where the service member is currently stationed, the state where the service member claims legal residency, or the state where the non-military spouse resides.”
But, be cautious. Stateside Legal, which provides legal help for military members, veterans and their families, advises folks to understand how that state handles the division of military pensions. 'The federal law governing the division of military pensions is the Uniformed Services Former Spouses' Protection Act' (USFSPA). This federal law says that the state of legal residence of the military member always has the power to divide the military pension in a divorce. So if you file for divorce in a state that is not the military member's state of legal residence, then the court may not have the authority to divide the pension.”
Stateside Legal further notes that while military members can give their consent to allow the court to divide their pension, “some states have other laws that can affect what happens to a military pension. Both of these topics are complicated and require advice from an attorney to avoid traps and problems.”
What about child support and custody?
Like many other facets of divorce, child support and custody are generally determined in alignment with state laws, so it can vary depending on location. However, as Military OneSoure notes, “[e]ach military service has policies requiring service members to support family members upon separation in the absence of an agreement or court order. These policies are designed to be temporary. A commander's authority is limited without a court order. You must send the court order to the Defense Finance and Accounting Service directing the government to pay monies for support or alimony.” Individuals should contact the legal office at their base as this is an issue JAG attorneys should be able to help with.
There are many other issues that come up in divorce: health care coverage, savings plans, potential implications of the Servicemembers Civil Relief Act and/or the Uniformed Services Former Spouse Protection Act on the case, and more. This article is only intended as a general overview on potential problems in military divorces, readers should contact legal counsel in their jurisdiction with any questions.
DISCLAIMER: The information contained in this article is for informational purposes only and not for the purpose of providing legal advice or opinions. This article should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. Readers should contact their attorney to obtain advice with respect to any particular issue or problem.
What issues have you encountered with military divorce? Leave a comment and let us know.
Posted by Roberta Fox, NMFA Volunteer, West region