Military Divorce Laws

Military Divorce Laws regarding Residency

A majority of states in the U.S. permit a military member or their partner to file for divorce at the location where the military member is stationed. It is not ascertained whether either of them is a legal resident of the state. A couple, in which either or both the members are in military, has the following options regarding the state in which divorce can be filed.

• The state of which the military member is a legal resident, or
• The state where the military member is stationed, or
• The state where the spouse who is filing the divorce resides.

When the petition for divorce is filed in a particular state, the laws of that state govern the child support, child custody and property distribution issues.

Military Divorce Laws regarding the military benefits of the former spouse

A former military spouse is eligible for all the benefits including complete exchange, commissary and medical privileges as per the rules of the USFSPA (Uniformed Services Former Spousal Protection Act). However, it is checked whether the following conditions are fulfilled.

• The duration of the marriage is minimum 20 years
• The military member has completed minimum 20 years of service that is creditable for retired payment
• There is minimum a 20 year overlap amongst the military service and the married life

In case of remarriage of the spouse, such a spouse is not eligible for the benefits. However, if such a remarriage terminates in a divorce, the benefits are revived.

Role of USFSPA

The USFSPA governs military pension. As per this Act, a part of the military retirees pay is directly paid to the former spouse. Certain base privileges are also extended to some former spouses.

There is no formula in the USFSPA to compute the precise division of the retired payment of the military member. The Act permits the state courts to consider the disposable retired pay as a property of the military member and the spouse or as a sole property of the military member. In this regard, the laws of the state court may be followed. The state laws determine the precise bifurcation of the retired payment of the military member. It is a fact that a majority of state courts have a formula to compute how the military pay would be divided.

It must be kept in mind that the USFSPA does not indicate that just because an individual is married to a military member, the individual would get a share of the retirement benefits. This Act does not have a rule regarding splitting of military retirement pay. The state courts award a share of the military member’s retirement payment to the spouse. The courts look up to the retirement payment just like property division in a civilian divorce. However, it is mandatory, that the divorce decree must mention the part of the retirement payment to be given to the spouse as a percentage. DFAS (Defense Finance and Accounting) is extremely strict regarding the wording of the Divorce Decree.

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