The family life of an active member of the military is far from ideal. There are frequent moves and deployments as well as long separations, and this puts extra stress on a non-military spouse that can become too much to bear. As it all too frequently happens, the marriage ends in divorce. The Department of Defense puts the divorce rate of military couples at 3.2% in 2011, a significant rise from the 2.6% in 2001.
But even in the dissolution of marriage, there are special features that differentiate civil and military divorce law. In a military divorce, it is entirely acceptable that the petition is filed wherever the service member is currently deployed, the home state, or the official state of residency on record. Because states all have different laws about divorce, it is important that the state where the divorce will be filed have laws that will benefit one or both spouses.
One of the special laws that are state-sensitive and impact on a military divorce is the Uniformed Services Former Spouses’ Protection Act (USFSPA). It is federal statute that requires a military spouse to give part of his or her disposable retirement pay (about 50%) to a non-military spouse. All states except Puerto Rico follow this law, though calculation of the division may vary from state to state. Moreover, California and some other states allow a non-military spouse to immediately benefit from an ex-spouse’s retirement pay even while he or she is still on active duty.
Another military divorce law that is federally-mandated is the Service Member Relief Act or SMRA. It gives a member of the military on active duty the right to place a hold-order on divorce proceedings for 90 days or more while he or she is overseas. This is to address the problem of appearing for hearings when it is not possible for the service member to be given leave. However, it is not an automatic stay. The service member must apply for this or choose to proceed with the divorce through video or other means of communication.
If a military divorce is being contemplated, it is best for both spouses to engage the services of a lawyer in the area cognizant with military divorce law. This will ensure that the best interests of all concerned are addressed.