Special Rules That Are Applicable to Military Divorces
Being in the military can be tough on a marriage, though divorce rates in the military are actually not that much higher than the general population. Here are some special rules to think about if you are considering a military divorce.
Service Members Civil Relief Act
As far back as the American Civil War, Congress has sought to protect its fighting forces against having their lives overly disrupted while they were on active duty. Congress simply issued a moratorium on lawsuits against soldiers and sailors during the Civil War, and then passed a similar rule instructing courts to be fair to service members during World War I. A variation of the law was passed again during World War II, but it was renamed the Soldiers’ and Sailors’ Civil Relief Act. The law has been in place ever since and has been amended many times, in particular, to be made more specific.
Probably the most important provision in the law is that it makes it nearly impossible to get default judgments against a service member. If an everyday civilian fails to respond to a lawsuit, the court can just rule against that civilian. In other words, a civilian can lose by not showing up.
A service member is protected from default, though. A service member can also pause, or “stay,” a lawsuit if necessary to meet military obligations.
The statute of limitations is extended while a service member is in uniform. The law also includes an anti-discrimination provision, that says service members cannot be penalized for invoking the law. In the context of a military divorce, this all just means that proceedings can be greatly delayed to accommodate a member of the military.
Uniformed Services Former Spouses’ Protection Act
Congress also stepped up in 1982 to recognize the unique financial situations facing many military families. This came on the heels of a U.S. Supreme Court ruling that a former spouse of a military member could not get any of that military member’s retirement benefits.
The law is still very controversial, but it seeks to address the fact that a military spouse in many ways makes it possible for the military member to go out and earn that lucrative pension.
Many people thought it was unfair for the wife of a soldier to run a household her whole life while her husband serves, but then be left with nothing when they divorced because all his retirement benefits went solely to him.
The law allows state courts to treat “disposable military retired pay” as property that can be divided upon a military divorce.
Direct payments of up to 50% of a the benefits due to a military member (or former military member) can be made to the service member’s former spouse.
Alimony and child support can come out of military benefits, and a former spouse can be listed as a beneficiary on the benefits. Some ex-spouses can also keep the military’s health care benefits. The definition of “disposable” pay has been a major problem with the law, as it fails to fairly account for life insurance and tax issues in many people’s eyes, but the law is generally considered more fair than just leaving longtime exes with nothing.
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