Divorce and the Military: What You Need to Know
Getting a divorce as a military member or the spouse of a military member can be tricky. It’s not that the process is legally tougher to get through than a “civilian divorce”, but there are some added considerations and more than a little misinformation out there on the subject that should be addressed. How much do you know about your rights and responsibilities during a divorce in a military family? We cover the critical issues below.
What follows is NOT legal advice. It’s a guide to what you might expect if you face a situation where a divorce is possible in a military family.
Divorce And The Military: The Basics
There are two sides to every divorce. The United States military and the Department of Defense have policies in place that require fair treatment of spouses and military members where divorce is concerned. What does that mean?
It means that while a military couple is legally married, the service member has a legal obligation under military regulations to provide adequate support for the spouse and family. Just because there are divorce proceedings happening does not relieve the servicemember of the responsibility of providing for the family’s needs–financial, educational, domicile, etc.
Legal Separation Versus Divorce
The official site of the Scott Air Force Base Judge Advocate provides some valuable insight where the differences between divorce and separation are concerned. “A legal separation is not a divorce, but usually results when the spouses agree to separate and enter a contract or separation agreement in which each spouse agrees to do or not to do certain things.”
The Scott AFB Judge Advocate also reminds that separation agreements are voluntary for both parties and you cannot be forced to sign one. Depending on the laws of the state with jurisdiction, breaking the separation agreement may constitute a breach of contract, but that is a matter for the civilian court and the lawyers to work through. The bottom line? If you are legally separated, in the eyes of the DoD you are still obligated to provide adequate financial support for the civilian spouse.
Divorce is the actual legal dissolution of the marriage. Once you are legally no longer married, the “adequate financial support” issue ends. Be advised that any legally binding agreements you enter into in terms of continued financial support are, while not established or enforced by the military, may be enforced legally in a civilian court of law.
Court-Ordered Financial Support
A service member who signs an agreement to pay alimony or child support or is ordered by the court to do so DOES incur a legal obligation to pay; failure to do so could be punishable under the UCMJ the same way failure to pay other financial obligations is punishable under military regulations.
The service member is not permitted to “throw out” a spouse and withdraw financial support to someone they are still legally married to. That does NOT mean a divorcing couple is required to continue living together in a pretense of marriage.
It DOES mean that even if the civilian spouse chooses to move out, the service member is still bound by an obligation to provide adequate support until the divorce is legally final. The service member cannot legally withhold basic support from the spouse.
A service member who is served with divorce papers may feel they have the right to ignore them because they “don’t have time” to deal with the legal matter due to military duty. However, this will NOT help the servicemember. According to the American Bar Association official site, “The servicemember should consult with his or her attorney and seek a ‘stay’—a temporary stoppage—of the case if appropriate.” Ignoring the legal paperwork can lead to legal trouble.
A frequently asked question about military divorces involves dependent ID cards, base access, and other issues. In a divorce case, the service member has NO RIGHT to commandeer or confiscate a spouse’s military-issued dependent ID or any other document issued to the dependent by the government. The military spouse has no right to control or otherwise restrict the spouse’s options to use base services or control the spouse’s ID card in any way.
Furthermore, if a civilian spouse feels the need to obtain a restraining order against the servicemember, the legally binding terms and conditions of such an order when issued by the appropriate authority are binding for the service member and vice versa.
A non-military spouse has the right to seek a legal divorce at any time. However, if there are accusations of impropriety involved, the spouse may need to seek legal counsel and provide supporting documentation to support a claim of wrongdoing.
A spouse who has a personal dispute with a military partner doesn’t have any recourse under the Uniform Code of Military Justice, but certain issues that are common factors in a divorce case such as adultery or failure to provide adequate support COULD be actionable by the service member’s chain of command as a violation of military regulations like the Uniform Code of Military Justice.
Legal Matters Versus Military Matters?
The non-military spouse’s primary responsibility in this area is to understand the difference between a legal issue for a divorce court to handle and an actual conduct violation under the UCMJ. Trying to make a divorce as punitive as possible for the service member is tempting for some who experience a very bad breakup, but frivolous claims of UCMJ violations will simply be a waste of time and will ultimately delay the divorce moving forward depending on the circumstances.
Military Divorces Happen In Civilian Court, Not Military Court
While the United States military does require its bases to have a Legal Office, the military does NOT intervene in domestic law issues such as divorce except where violation of military regulations occurs. In other words, you will NOT attend a divorce court hearing in a military courtroom. Divorce proceedings are handled under state law, not federal law. You will be required to file for a divorce according to the laws in the state where you were married, and your divorce will be handled by a local judge or other local authorized official.
Military Divorces And Military Legal Counsel
One of the most commonly asked questions by both civilian spouses and military members alike has to do with legal representation. Does any party to the divorce have the right to a lawyer provided by the U.S. military or the Department of Defense?
The short answer is no, you cannot be represented in court during a divorce case by a military lawyer as part of their official duties. That applies equally to civilians and servicemembers. No party to the divorce may be represented by a military lawyer. You are required to hire and pay for your own legal counsel to get a divorce and the military will not get involved in the legal matter of the divorce itself.
You Have the Right to Speak to a Military Lawyer As A Civilian Spouse or a Military Spouse
You DO have the right to make an appointment with a base Legal Office to get advice as a military member or civilian spouse about your rights and responsibilities under the law before, during, and after the divorce.
Being advised about your rights under the Servicemembers Civil Relief Act, the UCMJ, and the Department of Veterans Affairs disability compensation system is far different than being represented in court. A military lawyer can tell you your rights and give you their advice, but they cannot work in court on your behalf.
Furthermore, you have the right to separate legal assistance from your spouse. You should not be assigned the same legal assistant as the spouse to avoid even the appearance of a conflict of interest.
When making an appointment for this type of help, call the base Legal Office and tell them you need a legal assistance attorney to help you with any of the following:
- Legal divorce
- Legal separation
- Child support
- Child custody
- Military pension division
- Benefits under the Uniformed Services Former Spouses’ Protection Act
Are Former Spouses Automatically Entitled To Military Retirement Pay?
There is a misconception that a divorced spouse of a military member is automatically entitled to a portion of military retirement pay as a result of the divorce. The official site of the Defense Finance and Accounting Service (DFAS) reminds us that this is NOT true. No federal law provides an automatic award to the divorced spouse in this manner.
That said, if a former spouse is awarded part of the service member’s military retirement pay in a state court, that is a completely different matter. The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows a state court “to divide military retired pay as a marital asset or as community property in a divorce proceeding” as well as providing a means to collect.
How It Works
Under federal law, in order for a state court to have authority over a servicemember’s retired pay, the court must have legal jurisdiction by one of the following means:
- Residence unrelated to military duty “in the territorial jurisdiction of the court.”
- Owning a primary residence in the territorial jurisdiction of the court.
- The service member gives consent to the jurisdiction of the court.
DFAS also notes a “ten-year rule” in such cases. For a former spouse “to qualify for direct payments of retired pay as property under the USFSPA, the former spouse must have been married to the member for 10 years or more”. DFAS also notes that during this period, the member must have “performed at least 10 years of service creditable” toward retirement pay.
In cases where the ten-year rule is not met DFAS says, “it does not mean that a former spouse’s retired pay award is invalid” but means only that direct payments are not possible.
Can A Divorced Spouse Be Awarded VA Disability Pay?
Unlike military retirement pay, a portion of which may be awarded to a divorcing spouse by a state court as part of a divorce settlement, VA disability payments are not subject to being divided between the spouse and servicemember.
Why? Because federal law in the Uniformed Services Former Spouses’ Protection Act says VA disability compensation payments are not considered personal property for purposes of divorce. There is also a Supreme Court decision in this area.
Mansell v. Mansell was a case involving a divorce decree issued by a California court dividing a veteran’s disability benefits between the former spouses. The Supreme Court decision, in this case, found that state courts do not have the ability to divide up such disability pay as though it were community property.
Veterans who are experiencing a divorce may be subject to a decrease in VA compensation in certain cases. Those with VA disability ratings of 30% or higher are awarded a “with dependents” rate which may change after a divorce. A veteran with no parents or children, for example, would see their disability pay reduced to the “without dependents” rate after the divorce. This does not mean the spouse was awarded a portion of the pay, it simply means that the VA disability payment to the veteran has been adjusted to reflect the “without dependents” rate.