Military Divorce Process: Your Step-by-Step Guide

Military divorce has different legal requirements than civilian divorce. Use this step-by-step guide to make the process less overwhelming and stressful.

How Is a Military Divorce Different from Citizen Divorces?

Military divorce differs from non-military divorces in a few areas. For example, a strictly civilian divorce, where neither spouse is a service member, is mainly governed by the laws of the state where the divorce is filed. A military divorce, where at least one spouse is a service member, is governed by that state’s laws and federal laws, such as the Federal Servicemembers Civil Relief Act (SCRA) of 2003 and the Uniformed Services Former Spouse Protection Act (USFSP).

While not exhaustive, these two laws provide different protections and rights to a non-military and service member spouse that state laws may not typically provide. Examples of such differences include but are not limited to:

• The SCRA’s protection against filing a default judgment for divorce against a service member who has not consented to the divorce or otherwise participated in the divorce process
• Different residency intricacies that can make it difficult to understand the proper state for the divorce
• Different avenues for a non-military spouse’s receipt of the service member’s retirement benefits, depending on certain requirements being met

Step 1: Obtain Consent

One difference between a military and non-military divorce is the applicability of the Federal Service Members Civil Relief Act (SCRA) of 2003.

Under 50 U.S.C. §3931, a non-military spouse is precluded from obtaining a default judgment against their active-duty military spouse. This is unlike a civilian divorce. In a civilian divorce, the spouse files for divorce (petitioner) and serves the other spouse (respondent) with those pleadings. If the respondent spouse does not respond or otherwise participate in the divorce proceedings, the petitioner spouse can obtain a default judgment. This may include orders for child custody, child support, spousal support, and division of assets and debts.

In comparison, if that petitioner spouse wants to divorce their active-duty military spouse, the military spouse can request that the court stay (i.e., pause) the divorce. This stay lasts approximately 90 days until the military spouse can participate in the process. The court has its own discretion to extend the stay past 90 days, but the military spouse cannot indefinitely pause the divorce proceedings. 

However, there is a way around this roadblock to getting a divorce from an active-duty military spouse. A military member may consent to the divorce proceedings by accepting service of the summons and accompanying dissolution papers. If the military spouse does not consent, does not participate in the proceedings, but does not petition the court for a stay, the non-military spouse is legally precluded from filing for a default judgment.

In California, the Request to Enter Default form, FL-165, specifically requires the person requesting the default judgment to declare under penalty of perjury that the person whom they are seeking the default against is not in the military service. The intricacies associated with a military divorce, such as those surrounding the protections afforded by the SCRA, make it essential to hire an attorney familiar with military divorces.

Step 2: File in the Right State

To file for divorce, the filing spouse must file in the correct state. The correct state is the state where the non-military spouse or service member has legal residency. In military families, this is not always easy to determine given frequent relocations across the country and even internationally, and because the SCRA allows service members to retain their home state as their legal residence and does not require their duty station state to become their legal residence.

Additionally, the non-military spouse may also be able to claim legal residency in their service member spouse’s state of legal residence, despite not physically residing in that state. Only one party to a divorce is required to have legal residency in that state to file for divorce there. In California, a person must be a resident of the state for six months, including three months in a particular county to file in that county.

Legal residency is not always where the military spouse or service member is physically living or where you were married. Some factors that help determine residency are the state where you or your spouse votes or pays taxes, the issuing state for you or your spouse’s driver’s license or car title, and the state where your financial accounts are housed. Therefore, it is important that you retain the best military divorce lawyers if you are the service member or the military spouse thinking about or experiencing divorce.

Step 3: Know Your Rights

Once you or your spouse has made the decision to file for divorce and has filed in the correct state, it is important that you know your rights. Whether you are the service member or the non-military spouse, it is integral to the divorce process and any settlement negotiations that you know what you and your spouse are entitled to.

Service members and their spouses receive a wide range of benefits that will be addressed in a divorce in one way or another. For example, a married service member receives a basic housing allowance (BAH) depending on things such as how many dependents they have and their duty station’s location. This BAH is counted as income, in addition to the service member’s base pay, for purposes of spousal and child support. Other benefits service members and their spouses are entitled to include retirement/pension, medical benefits, and on-base privileges.

These benefits and their allocation in a divorce are generally regulated by the Uniformed Services Former Spouse Prevention Act (USFSPA). Some important factors that are relevant to determining the allocation of benefits in a divorce include the duration of the marriage and how many of those years the service member was in the military.

For example, the USFSPA’s 20/20/20 rule states that if the non-military spouse and service member were married for at least 20 years and the service member served for at least 20 years during their marriage, i.e., there is 20 years of overlapping military service and marriage, the non-military spouse is entitled to lifetime healthcare and on-base privileges, in addition to an apportionment of the service member’s retirement to be paid directly by the government.

Many military divorces are done before these requirements are met, so it is important to understand what that means in terms of entitlement to a portion of the service member’s retirement and how those payments are made. This is yet another reason why working with a civilian attorney familiar with both state and federal laws applicable to service members and non-military spouses is essential to understanding your rights.

Step 4: Seek Additional Counsel When Needed

Going through a military divorce, whether you are the service member or the non-military spouse, is not necessarily straightforward. Therefore, working with a lawyer who is knowledgeable on military divorce and the divorce laws of the state where the divorce is taking place is essential.

Service members and their non-military spouses have access to military legal at their duty station. Base legal can provide free legal counsel and provide important information on military benefits and the effect of divorce on the non-military spouse and service member. However, base legal is limited in that they are not able to file for divorce on your behalf and may not be familiar with the laws specific to the state of the divorce filing.

These are important reasons why working with a civilian divorce attorney is helpful. Civilian divorce attorneys, specifically those familiar with military divorces, can legally file divorce paperwork and represent you in court. They can also work in the background to offer advice, review documents, and review settlement offers or settlement agreements.

If you choose to try to mediate the divorce and avoid litigation and court proceedings, you are permitted to have representation during the mediation. Military legal assistance can be helpful to get a general idea of rights and responsibilities of the service member and non-military spouse. However, for purposes of knowing how these rights and responsibilities provided by federal law interact with those provided under state law, retaining a civilian divorce attorney versed in all these areas is highly encouraged.

Get the Support You Need With Your Military Divorce

Military divorces, whether one or both spouses is a service member, offer unique challenges not faced in strictly civilian divorces. These challenges mean that those going through a military divorce should understand their rights and responsibilities under both state and applicable federal laws. This is important whether you are the service member spouse, non-military spouse, spouse seeking to file for divorce, or spouse who is facing a divorce they did not want. While base legal can provide some guidance, their assistance is limited. Seeking the help of a divorce attorney familiar in both state and applicable federal laws is essential when put in this situation.

Get the military divorce legal assistance you need; contact Cage & Miles today.