What Is Military Divorce
A military divorce is a dissolution of marriage involving at least one active duty, reserve, or retired service member. These cases fall under both state family law and federal statutes that create unique filing requirements, jurisdictional rules, and asset division procedures not found in civilian divorces.
Federal and State Jurisdiction
Military divorces are filed in state courts, not federal courts, but federal law overlays state proceedings in critical ways. The Servicemembers Civil Relief Act (SCRA) provides automatic stay protections for active duty members, meaning courts must pause divorce proceedings if the service member requests it. The stay can last up to 60 days, renewable if the member is unable to participate due to military duties.
Residency rules vary by state. Some states require the service member or spouse to be a resident for 6 months to 1 year before filing. Military families often move frequently, which can create competing claims in multiple states. Generally, courts apply the residency of where the service member is stationed or where the spouse has established residency.
Property Division and Military Pensions
Military pensions represent the largest asset in most service member divorces. The Uniformed Services Former Spouses' Protection Act (USFSPA) allows state courts to divide military pensions as community property, typically up to 50 percent. However, the service member must have served at least 20 years and the marriage must have overlapped with at least 20 years of service for the ex-spouse to receive direct pension payments from the military.
If the 20/20 rule is not met, the ex-spouse may still receive a portion through spousal support or as a settlement trade-off. Military Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) are generally considered separate property if earned during active duty but can become divisible community property depending on state law and timing.
Custody and Child Support
Child custody and support follow state law, but deployment schedules significantly affect parenting plans. Most military divorces include provisions that address extended deployments, with custody reverting to the non-deployed parent during active service abroad. The Transition Assistance Program (TAP) provides resources for service members and their families, including custody mediation services in some cases.
Child support is calculated using the service member's base pay plus BAH and BAS in most states. The Federal Parent Locator Service assists in establishing and enforcing child support orders across state lines, particularly important for military families.
Filing Requirements and Notices
Military divorces require specific notice procedures. If the service member's location is unknown, attorneys must file an affidavit stating efforts to locate the member and may request publication notice through military channels. The military's Legal Assistance Office can confirm service member status and current duty station to facilitate proper service of process.
Common Questions
- Can a service member delay divorce proceedings? Yes. Under SCRA, active duty service members can request a stay of up to 60 days if military duties prevent participation. Courts can extend this, but stays are temporary and must be renewed.
- What happens to BAH and BAS in divorce? These allowances are included in income calculations for child support and sometimes spousal support. They are not directly divided as marital property but affect the service member's overall compensation used in support calculations.
- How is a military pension divided if the marriage was shorter than the service? If the couple was married for fewer than 20 years, the ex-spouse cannot collect directly from the military. However, the pension value may be split in other ways, such as the service member keeping the pension and the spouse receiving more of other marital assets or spousal support.