Military divorce law is highly specialized, according to Lawyers.com, a website that explains legal issues for lay readers. As a general rule, pensions and some aspects of child support are covered by federal statutes, while all other issues fall to state courts. You or your attorney will need to be able to navigate this maze in order to protect your rights.
Jurisdiction
For any divorce to be possible, a state court must take jurisdiction over the marriage and this holds for military divorces as well. Many states will relax their residency requirements to allow the service member to file for divorce if he is stationed there, even if the two of you never resided there. If the nonmilitary spouse wants to file, however, she must do it in the county and state where she resides. If he is on active duty, your husband would have to consent to service of the complaint wherever he is based. If he doesn't consent, you would have to ask the court to appoint an officer of the court to serve him.
Servicemembers Civil Relief Act
Originally called the Soldiers’ and Sailors’ Civil Relief Act, this federal legislation was revamped into the Servicemembers Civil Relief Act, or SCRA, in December 2003 to protect your husband against having to deal with domestic issues while he is on active duty and for up to 60 days afterward. It allows a state court judge the discretion to put your divorce on hold to allow your husband to devote his “entire energy to the defense needs of the Nation.”
Uniformed Services Former Spouses’ Protection Act
If you have dedicated your working years to supporting your husband and your country through his service in the armed forces, the Uniformed Services Former Spouses’ Protection Act, or USFSPA, attempts to insure that you are not left out in the cold at retirement age because of a divorce. Be warned, however, that it simply permits individual states to divert up to 50 percent of your husband’s military retirement benefits to you. It doesn’t obligate them to do so. There is no duration-of-marriage requirement for receiving a portion of your husband’s retirement pay, but you do have to have been married to him for at least ten years that coincide with his period of service in order for the U.S. Defense Finance Center to oversee the distribution and send your portion of his benefits directly to you.
Survivor Benefit Plan
The Survivor Benefit Plan, or SBP, links to the USFSPA to protect your share of your husband’s retirement benefits if he dies, but it’s not automatic and it’s not free. Like an insurance policy, you have to apply and pay a premium. If you do this, you will continue to receive up to 55 percent of his pension if he predeceases you. This plan will also protect you in the event that he remarries before his death. The SBP prohibits his new wife and any of their children from having duplicate coverage.
Child Support
Federal law caps your husband’s obligation to provide for his children at 60 percent of his pay plus allowances. Allowances, such as Basic Allowance for Housing, are added to his base pay to calculate child support according to the guidelines of whatever state has jurisdiction. Anything he earns under Publication 3 of the Internal Revenue Service’s Armed Forces Tax is exempt from being considered as income, however. This would include pay he earns while serving in a combat zone on dates specified by the president of the United States.
