A member of the military getting divorced will need to follow the same basic steps as anyone else. The spouses will generally have to appear before a judge and explain that their relationship has become irreconcilable and that they have been separated for a period of time. The judge will then divide their assets and provide for the care of any children in the marriage. The real difference for military members is where and when they can get divorced.
Military protections on timing
The Servicemembers Civil Relief Act (“SCRA”) is a federal law passed to protect active duty service members from being attacked in court. The law will not stop a divorce proceeding, but it can delay proceedings while the U.S. Department of Defense makes arrangements for the service member to participate. This is a federal law that applies in any state and it will often delay the process.
A court must have jurisdiction to consider a divorce action. Federal courts generally do not get involved in family law, so all divorce proceedings must be conducted in a state court that has jurisdiction over one spouse. Generally this will be a court located where one spouse lives. Military benefits make this issue slightly more complicated, however. Federal statutes (10 U.S.C. 1408) say that no foreign court can have jurisdiction over a military pension, and a court cannot get jurisdiction over an active servicemembers benefits just because the servicemember is stationed in that jurisdiction.
Service of process
When filing for divorce the other spouse needs to be served a notice that the action has been filed so he or she can have an opportunity to respond. This is typically as simple as handing the spouse a copy of the relevant paperwork. For an active military member it can be more complicated, especially at an overseas post. The various treaties and agreements between the U.S. and the post country can come into play, and it is likely an expert will need to be consulted if this becomes an issue.
Military pension and benefits
Military retirement benefits, and pensions in particular, are often at the heart of any divorce involving a member of the armed forces. This is simply because the benefits are so generous and both spouses typically make sacrifices for those benefits to be earned. There is a federal statute called the Uniformed Services Former Spouse Protection Act (“USFSPA”) that was put in place to address this common issue. A former spouse can only directly receive a part of the pension if the service member performed at least ten years of service and the couple was married for ten years. That said, the pension can be seen as marital or community property awarded to one spouse that needs to be offset by other assets being awarded to the other spouse. Additionally, when a couple has been married for at least 20 years and one spouse has done 20 years of service, then the other spouse is eligible for benefits in their own right.
Spousal and child support
The military has special rules that can make it easier for children and former spouses to collect on support payments that are owed.