Considerations for Divorces Involving Military Personnel

As someone going through or preparing for a divorce in New Mexico, you’ve got a ton of concerns. If you or your spouse are an active-duty military member or a veteran, there are even more things to consider. Although you will go through the same court process as civilians, there are additional things to handle in a military divorce. Where you or your spouse are stationed can impact the location and timing of the court process, for example, and the military has its own rules about benefits, pensions, and financial support.

If you are thinking about or in the middle of a military divorce, contacting an experienced divorce attorney is a wise move. An attorney will be able to advise you based on your specific circumstances. Until you connect with an attorney, however, you can learn more about some of the potential impact of military service on a divorce.

Where to File

In the U.S., the Servicemembers Civil Relief Act shields military members from some financial and legal pressures when they are on active service. The purpose of this set of rules is to allow those in the military to keep their focus on their duties without distractions such as home foreclosure or getting sued by a person who is back in their home state.

When a service member who is on active duty wants to get a divorce, they can consent to the jurisdiction of a particular court for the purposes of the divorce proceeding. If a service member cannot go to court because of their military duties, the act allows for the case to be postponed and does provide some protection against default judgments, which are judgments that may be granted when one person involved in the case does not participate in the proceedings.

Depending on your situation, you may have more than one option for filing your divorce case. Speak to your attorney about what your options are as an active-duty military member or as a spouse of an active-duty military member.

Rules for Benefits, Payment and Support

Another set of regulations, the Uniformed Services Former Spouse Protection Act (USFSPA), is what addresses issues the former spouse of a military member may be affected by, such as health care benefits, commissary access, military retirement pay, and more. This Act also addresses spousal and child support.

When a civilian divorces a military member, they do not automatically get a part of the member’s military retirement pay. The military will not give the civilian ex-spouse any of the retirement pay unless the civil divorce court involved gave that ex-spouse a percentage or amount of that asset.

A civil ex-spouse of a military member can use USFSPA to enforce payment of child or spousal support. However, as with retirement, this is only true if the support was court-ordered.

To receive some benefits, the military member must have served a certain number of years, and they and their civilian spouse must have been married for a minimum number of years. In addition, the marriage needs to overlap with the military service. A “20/20/20” spouse, for example, is someone who was married for at least 20 years to a service member who served for at least 20 years, and at least 20 years of service occurred during the marriage. In this scenario, the former civilian spouse usually gets full commissary access and health care and exchange benefits.

Don’t simply assume the military will take care of you, even if you were married to a service member for years or served for many years yourself. Because your divorce will go through civilian courts, it is best to contact an attorney so you have guidance and your rights are protected during your case.