Chapter 12 Military Divorce: Special Issues

• Library: Nolo's Essential Guide to Divorce (Nolo) (2020 Ed.)

CHAPTER 12 Military Divorce: Special Issues

Beginning a Divorce

Where Should You File? Jurisdiction, Domicile, and Residence

Serving Divorce Papers on Your Spouse

The Servicemembers Civil Relief Act

Custody and Visitation

Custody, Visitation, and the SCRA

Preparing a Parenting or Family Care Plan

Overseas Visitation

Support for Children and Spouses

Calculating Pay

Spousal Support (Alimony)

Enforcement of Support Orders

Medical Benefits

Dividing Property

Pensions, Insurance, and Other Benefits

Military Pensions

The 10/10 Rule and the USFSPA

Dividing a Military Pension

Career Status Bonus and Combat-Related Special Compensation

The Survivor Benefit Plan

The Thrift Savings Plan

Early Separation Payments

Accrued Leave

Civil Service Rollovers

Life Insurance

Tax Issues

Domestic Violence and Other Abuse

Postdivorce Follow-Up

Resources

If you are one of the nearly 1.1 million active duty American military personnel stationed around the world—or if you're married to someone who is—you'll be dealing with some divorce issues that don't affect civilians. You'll probably need legal counsel (see below). But before you hire an attorney, or while you're working with one, this chapter can help by explaining what the issues are, how they may affect you, and how you can make sure you're doing what you need to do.

Having one's spouse in the military affects:

• where your divorce will be filed
• how support is calculated
• custody and visitation decisions, and
• pension rights and other benefits.

In all these areas, servicemembers have certain rights and obligations that are very different from those of civilians.

CAUTION

Don't try this at home. Unless the servicemember in your family has been in the military an extremely short time and you have limited assets, you absolutely shouldn't negotiate your divorce or sign a settlement agreement without at least consulting a lawyer experienced in military divorce. Most likely, you're going to want to hire a lawyer to represent you all through the divorce. (You may be able to get some free legal help through the military; see "Resources," below.) Finally, if you are working with an attorney who does not have experience in this area, you can ask your attorney to use this chapter as a jumping-off point to find additional information about how to protect your interests.

Beginning a Divorce

From the start, a military divorce can involve questions that other couples don't face. Case in point: Where should you file for divorce?

Where Should You File? Jurisdiction, Domicile, and Residence

Your divorce won't be valid unless the court that grants it has what's called "jurisdiction" over you and your spouse. That's true for every divorce, but in addition, federal law provides that in order to make court orders relating to a military retirement plan enforceable, certain special jurisdictional requirements must be met. (If retirement benefits aren't an issue in your divorce at all, you can refer to Chapter 3 for information about where to file.)

To ensure that the court you choose has jurisdiction over a military retirement plan, you must file for divorce in a state:

• where the military spouse is domiciled
• where the military spouse is a resident, or
• that you and your spouse both agree to.

Remember that wherever you file, the laws of that state will govern your divorce—not those of the state where you married or the state where your spouse lives, if those are different.

Where Is Your Domicile?

If you're a servicemember, domicile is defined as your permanent home, sometimes also called the "state of legal residence." You also have a "home of record," which is the state you lived in when you joined the military. This is an accounting term and doesn't affect domicile.

You can keep a domicile even while not living there, if it has been your home and you intend to return and live there permanently. Being registered to vote and paying state income tax in a state are two strong indications that you intend to return. Some other indications of your domicile include:

• the address you use on your federal tax return
• where you own a home
• where your immediate family (spouse and children) lives
• where you register your car, and
• the residence you declare in documents such as a will or an insurance policy.

It's possible for spouses to have different domiciles. Be sure that you base your choice of where to file on the servicemember's residence or domicile.

Some states let servicemembers file for divorce if they are stationed there, even if a servicemember doesn't intend to make it a permanent home. But there's a theoretical possibility that another state might refuse to recognize a divorce that's based on a rule like this, sometimes called a "faux residency" law. It's better to file where you are domiciled under the rules discussed above.

Where Are You a Resident for Divorce Purposes?

Most states require you to live in the state for a certain period (commonly, three to 12 months) before you can file for divorce there. (Chapter 3 lists each state's residency requirements.)

Some states require physical presence to establish residency, but most states consider military members who are absent from the state because of military service to remain legal residents during their absence.

The bottom line is, don't fudge on where you file—especially if you're a civilian spouse. Retirement benefits are too important to risk losing because your case was filed in a location where the court doesn't actually have jurisdiction over both spouses and your property.

Consent to Jurisdiction

If you and your spouse agree about where you want to bring your divorce action, you don't need to worry about jurisdiction. If you both participate in the divorce action without challenging jurisdiction, then the final judgment would probably stand up against a legal challenge later.

If You or Your Spouse Is Overseas

If you are stationed overseas or married to someone who is, you can still file in the United States. The proper place to file is the state where you are domiciled or meet the residency requirements, as described above. If you're a servicemember stationed overseas, you'll need an attorney in the United States to help you file at home.

Filing in the States from a distance is preferable to trying to get a foreign divorce, even though the foreign divorce might seem attractive if you're stationed where divorce is easy and inexpensive. The military won't honor a pension division order from a foreign country, and it's hard to know for sure that your divorce judgment itself will be respected when you return to the States.

Serving Divorce Papers on Your Spouse

The process of serving (delivering) papers to a spouse who is in military service can be more complicated than in a nonmilitary case. But service is the way that a court takes jurisdiction over the nonfiling party, and you need to get it done.

Serving Overseas Personnel

It may be difficult to get the paperwork to a spouse who is stationed overseas—especially if you've been separated for a while and you're not sure where your spouse is. If your divorce is uncontested and you just need to get the paperwork to your spouse, you can accomplish service by mail just as if you both were living stateside. Chapter 3 explains how.

If you can't reach your overseas spouse or you find that mail service is likely to be refused, you may be able to seek help from a commanding officer or base commander. But in most cases, you'll need a lawyer's help. Getting someone to serve papers personally on a military base in a foreign country is not a simple process—it's regulated by international treaty and varies from country to country—and you need the help of someone who's done it before.

Locating Your Spouse

It's possible for married people to lose track of each other, especially if they've been separated for a long time without getting around to formalizing their divorce. It's also possible that one spouse might deliberately try to elude the other. In either case, if you want a divorce, the missing spouse needs to be located or you need to get permission to proceed without the other spouse's participation.

If you're trying to find a civilian spouse, see Chapter 3 for information about how to look for your spouse and how to ask a court to excuse you from the personal service requirement if your search doesn't succeed.

If you're looking for a missing servicemember, you may have a challenge ahead of you. If you know your spouse's Social Security number, you're one step ahead of the game. Even without that, a copy of your spouse's military identification card will be very helpful. Without either one, you're really going to have an uphill battle.

If you do have a Social Security number, you can try a number of ways to locate your missing spouse.

Military locators. Each branch of the service has a Worldwide Military Locator Service. Not all of them are online yet. If you write or call, you'll need to explain who you are and why you are searching and provide all the information you have about your missing spouse. An experienced attorney should be able to expedite your search. Another resource is the National Archives at www.archives.gov/veterans/locate-service-members.html. There are also a number of sites that aren't affiliated with any government agency, like www.gisearch.com.

Base commander. You can try contacting the base commander at the last known military base, to see whether the commanding officer has information about your spouse's new assignment.

Legal Assistance Office. The military has a group of lawyers called "legal assistance attorneys" (LAAs) whose job is to help servicemembers (and their families) with nonmilitary legal issues. An LAA might be able to help you find out your spouse's current whereabouts. You can get help from an LAA who is in a different branch of the military from your spouse. To find a legal assistance office, try checking military.com or the...