Divorce can be complicated for any couple, but ending a marriage involving a service member can raise additional legal and financial questions. Military divorce may involve issues that do not typically arise in a civilian divorce, including military retirement pay, benefits, relocation, deployment, jurisdiction, custody, and federal protections for service members.
The basic divorce process is generally governed by state law, but federal law can affect certain aspects of a military divorce. The Uniformed Services Former Spouses’ Protection Act (USFSPA), for example, establishes a framework under which state courts may treat certain military retired pay as marital property and provides a mechanism for enforcing certain support obligations.
Because military families may live in different states or overseas, determining where to file can also require careful consideration.
This guide explains some of the most important issues to understand when a service member or military spouse is facing divorce.
Is Military Divorce Different From Civilian Divorce?
Military divorce is still primarily a state-law matter. The state where the divorce is filed generally determines issues such as property division, child custody, child support, and spousal support.
However, military service can create additional complications.
For example, a service member may be stationed in another state or country. A spouse may live somewhere different from the service member’s legal residence. Military retirement benefits may also represent a substantial marital asset.
Federal laws can affect the timing and administration of the case. The Servicemembers Civil Relief Act (SCRA), for example, provides certain protections that may affect court proceedings involving qualifying service members. Military OneSource notes that the SCRA may affect divorce proceedings and other legal matters.
Where Should a Military Divorce Be Filed?
Determining the proper state for a divorce can be one of the first major questions.
Military families frequently move because of permanent changes of station, deployments, or other assignments. As a result, a service member and spouse may have connections to several states.
Depending on the circumstances and state law, a divorce may potentially be filed in a state where one spouse resides or where the service member maintains legal domicile.
Military OneSource explains that military members and their spouses may have options involving the state where the nonmilitary spouse resides, the state where the service member is stationed, or the state where the service member claims legal residency.
The specific residency requirements are determined by state law. Before filing, it is important to confirm that the selected court has jurisdiction over the divorce and the issues you want the court to decide.
What Is the Servicemembers Civil Relief Act?
The Servicemembers Civil Relief Act, commonly called the SCRA, provides legal protections for eligible service members whose military duties may interfere with their ability to participate in certain legal proceedings.
In a divorce case, these protections can affect scheduling or other procedural matters.
The purpose is not to prevent a spouse from obtaining a divorce indefinitely. Instead, the law can provide protections that recognize the demands of military service.
For example, a service member who is deployed or otherwise unable to participate fully in a proceeding may have rights under the SCRA.
The exact protections and requirements depend on the circumstances. Anyone involved in a military divorce should determine whether the SCRA applies to the case.
Military Retirement Pay
Military retirement pay is one of the most important financial issues in many military divorces.
The Uniformed Services Former Spouses’ Protection Act provides a legal framework under which state courts may treat certain disposable military retired pay as property of the service member and spouse, subject to federal and state law.
Importantly, the USFSPA does not automatically give a former spouse a share of military retirement pay.
Military OneSource specifically explains that a former spouse must be awarded a portion of retired pay through a court order before the USFSPA can provide a method for receiving that share.
Therefore, spouses should pay close attention to how retirement benefits are addressed in the divorce judgment or settlement agreement.
The “10/10 Rule”
People often hear about the military divorce “10/10 rule.”
Under federal law, a former spouse generally cannot receive direct payment from the military finance system for a property division of retired pay unless the marriage overlapped at least 10 years with at least 10 years of creditable military service.
This rule is frequently misunderstood.
It does not mean that a marriage must last 10 years before a state court can potentially award a spouse an interest in military retirement under applicable law.
Instead, the 10-year requirement relates to the federal direct-payment mechanism.
A spouse may have rights under state law even when the marriage and military service do not meet the 10/10 requirement. However, the method of collecting an award can be different.
How Is Military Retirement Divided?
There is no universal federal rule saying that a former spouse automatically receives half of a service member’s retirement pay.
Instead, state law generally determines whether and how military retired pay is treated as marital or community property.
The court may consider the portion of the retirement earned during the marriage, depending on applicable law.
For example, if a service member served for many years but was married for only part of that period, the marital portion may be calculated differently from the service member’s entire retirement benefit.
The exact calculation can be complicated, particularly when the service member has multiple periods of service, promotions, disability-related benefits, or other factors affecting retired pay.
A qualified attorney or financial professional can help determine the appropriate calculation.
Direct Payment Through DFAS
The Defense Finance and Accounting Service, commonly known as DFAS, administers certain payments involving military retired pay.
A former spouse seeking direct payment generally needs to submit appropriate documentation, including the court order and required forms.
Military OneSource states that a former spouse seeking direct payment may need to submit a signed DD Form 2293 along with a qualifying court order and supporting documentation.
DFAS also identifies the DD Form 2293 as the application for former spouse payments from retired pay.
The court order must meet applicable requirements. A divorce decree that simply says one spouse receives “half of the retirement” may not necessarily provide enough detail for administrative processing.
This is why precise drafting is extremely important.
Child Support and Spousal Support
Military divorce can also involve child support and spousal support.
State law generally determines the amount and duration of support, but military compensation can make the calculation more complicated.
A service member’s income may include basic pay and various allowances or other forms of compensation. Which amounts are considered when calculating support depends on applicable law.
Child support may also be affected by parenting arrangements, healthcare expenses, childcare costs, and other factors.
Military OneSource notes that military services have policies concerning support of family members during separation, although commanders’ authority is limited and court orders can play an important role.
A court order can also provide for payments that are administered through the appropriate military payment system.
Child Custody When a Parent Is in the Military
Child custody can be particularly complicated when one parent is a service member.
Deployments, temporary assignments, training, and relocations can affect parenting schedules.
However, military service does not automatically mean that a parent will lose custody.
Courts generally apply the state’s child-custody standards and focus on the child’s best interests.
A parenting plan may need to address situations that are less common in civilian families, such as:
- Deployment
- Temporary duty assignments
- Extended training
- Relocation
- Communication while deployed
- Transportation
- Holiday schedules
- Contact with extended family
- Changes in parenting time during military assignments
Parents should try to create a realistic plan that accounts for military responsibilities without unnecessarily interfering with the child’s relationship with either parent.
Deployment and Temporary Custody Changes
A service member’s deployment may require temporary adjustments to parenting arrangements.
Some states have specific laws addressing custody during military deployment. The exact rules vary.
A temporary change in parenting time does not necessarily mean that the underlying custody arrangement permanently changes.
For example, a parent may temporarily care for a child while the other parent is deployed and then return to the regular schedule after the deployment.
Because state laws differ, military parents should review the rules applicable to their state before making informal changes to a custody arrangement.
Military Benefits After Divorce
Divorce can affect certain military-related benefits.
The availability of benefits for a former spouse depends on factors such as the length of the marriage, length of military service, retirement status, remarriage, and other legal requirements.
Some former spouses may qualify for certain benefits under federal law, while others may not.
For example, federal law provides specific rules concerning certain unremarried former spouses and access to commissary and exchange-related facilities.
Healthcare benefits can also involve specific eligibility requirements.
Because benefits can be lost if certain requirements are not satisfied, spouses should determine which benefits they may qualify for before finalizing a divorce settlement.
Survivor Benefit Plan
The Survivor Benefit Plan, commonly known as SBP, can be another important issue.
Military retirement benefits normally terminate upon the retiree’s death, but SBP can provide eligible beneficiaries with continuing payments under qualifying circumstances.
A divorce settlement may need to address whether former-spouse coverage will be maintained.
The rules concerning SBP elections and former spouses are detailed and can involve strict procedures and deadlines.
Because a retirement award and survivor protection are separate issues, spouses should not assume that receiving a portion of retired pay automatically provides survivor benefits.
Divorce While Stationed Overseas
Military families sometimes live outside the United States.
A divorce involving an overseas residence can raise questions about jurisdiction and recognition of foreign divorces.
Military OneSource cautions that divorces filed overseas can be more complicated and notes that a U.S. court may not recognize every foreign divorce.
Before filing in another country, determine whether the resulting divorce will be recognized in the United States and whether the court will have authority to resolve issues involving military retirement, property, custody, and support.
In many circumstances, filing in an appropriate U.S. state may provide a clearer path.
Legal Assistance for Military Families
One significant resource available to many military families is military legal assistance.
Military OneSource states that installation legal assistance offices can provide free legal assistance to eligible service members and families. Services may include divorce-related guidance, mediation, child custody information, and assistance with issues involving the SCRA.
Legal assistance attorneys can be an excellent starting point for understanding the general rules and available resources.
However, depending on the circumstances, you may also need independent private legal representation, particularly when substantial assets, contested custody, retirement benefits, or complex jurisdictional issues are involved.
Documents to Gather
Preparing documents early can make the divorce process easier.
Useful records may include:
- Marriage certificate
- Military orders
- Leave and Earnings Statements
- Retirement information
- DD Form 214, if applicable
- Bank statements
- Tax returns
- Investment records
- Insurance documents
- Property records
- Debt statements
- Childcare expenses
- Medical insurance information
- Existing court orders
- Custody or parenting agreements
DFAS also identifies documents such as divorce decrees, marriage certificates, supporting records, and DD Form 2293 in connection with certain former-spouse payment claims.
Keep copies of important records and provide accurate information to your attorney.
Common Mistakes to Avoid
Military divorce can become more difficult when spouses overlook the details.
Common mistakes include:
Assuming the spouse automatically receives half of the pension. Military retirement division depends on applicable law and the terms of the court order.
Ignoring the 10/10 rule. The rule concerns direct payment through the military system and does not automatically determine whether a former spouse has a property interest.
Failing to address survivor benefits. Retirement payments and survivor benefits are separate considerations.
Ignoring deployment issues. Parenting plans should account for realistic military obligations.
Choosing a court without confirming jurisdiction. Military families may have connections to multiple states.
Failing to follow court orders. Military status does not excuse a person from complying with applicable family-court orders.
Waiting too long to address benefits. Some military benefits have specific eligibility requirements and procedures.
Final Thoughts
Military divorce combines ordinary family-law issues with additional questions created by military service. Retirement pay, federal protections, military benefits, deployment, custody, support, and jurisdiction can all require special attention.
The Uniformed Services Former Spouses’ Protection Act can provide a mechanism for dividing certain military retired pay, but it does not automatically give a former spouse a share of the pension. The SCRA may also provide protections affecting divorce proceedings involving eligible service members.
Because military divorce laws involve both state and federal rules, careful planning is important. Gather your financial and military records, understand your rights, review potential benefits, and make sure any settlement or court order addresses retirement and other military-related issues precisely.
If you are facing a military divorce, consider speaking with a qualified family-law attorney who understands military family law in the relevant state. Eligible service members and spouses can also explore military legal assistance resources for general guidance and support.
This article is for general informational purposes only and does not constitute legal advice. Military divorce laws and benefits can vary based on state law, federal law, military status, and individual circumstances. Consult a qualified attorney or appropriate military legal assistance office for advice about your specific situation.