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Divorce is a process that can be difficult no matter the situation, but divorce, when one spouse is involved with the military, can present unique and challenging scenarios. It is important to understand how military divorce works before making any decisions.
Divorcing Proceedings With Military Spouse
Divorce proceedings can be complicated at the best of times, but when one spouse is in the military, there are a few additional steps that need to be taken. If you or your spouse is in the military and you are considering a divorce, here are a few things you should know.
Actively Serving Spouse
When one spouse is actively serving in the military, they have the option of using the Servicemembers' Civil Relief Act (SCRA) to delay divorce proceedings. This act allows active duty servicemembers to request a stay of proceedings in any civil action, including divorce, so long as they can show that their military service has materially affected their ability to participate in the proceedings. In other words, if you are deployed overseas or otherwise unable to attend court hearings or meet with your attorney, you may be able to use SCRA to delay your divorce until you can participate.
Spouse Retired from Military
Unlike actively serving members, retirees are not automatically entitled to a stay of proceedings under SCRA. However, this does not mean that retired service members are at a disadvantage in divorce proceedings; instead, it simply gives them more flexibility in how they choose to proceed. Former members may opt to settle their divorce out of court through mediation or collaborative law, or they may decide to proceed with traditional litigation if they believe it is in their best interests to do so.
How Benefits and Pensions are Affected in Military Divorce
Divorce can have several different effects on military benefits. For example, if one spouse is in the military and the other is not, the non-military spouse may lose access to certain benefits, such as health insurance. Additionally, divorce can affect things like retirement benefits and housing allowances.
The Uniformed Services Former Spouses' Protection Act (USFSPA)
USFSPA is a federal law that was enacted in 1982 in order to protect the rights of military spouses in the event of a divorce. In particular, USFSPA provides for the division of military retirement pay in a divorce. Before USFSPA, military retirement pay could not be divided in a divorce; however, USFSPA changed that by giving state courts the authority to determine how military retirement benefits should be divided in a divorce.
The 10/10 Rule
Through the Defense Finance and Accounting Service, the former spouse of a military service member may receive military retirement benefits provided their marriage lasted at least 10 years and that, during that time, the service member spouse served for at least 10 years.
Tricare Benefits Upon Divorce
Former spouses of military members will lose their Tricare benefits almost immediately after their divorce is finalized. In some instances, similar to the above 10/10 rule, former spouses may retain all or some of their Tricare benefits.
- 20/20/20 Rule - If the marriage lasted for at least 20 years and the military spouse served for at least 20 years (with an overlap of marriage and service being 20 years), the non-military spouse may retain Tricare benefits for as long as they remain eligible.
- 20/15/20 Rule - If the marriage lasted for at least 20 years, the military spouse served for at least 20 years, and there were at least 15 years of overlap between the two, the non-military spouse may retain Tricare benefits for one year.
If you are considering divorce, call us today at (904) 770-3141 or schedule a free initial consultation online by filling out our form.