Is military divorce the same as regular divorce?

The military lifestyle is a unique experience for families. It can be filled with uncertainty, abrupt relocation, deployment, separation and distance. It can be challenging, even when those challenges are offset by feelings of pride and patriotism, occasions to learn and travel, and the grit that comes from sacrificing for the greater good. Military families truly experience a mixed bag of stressful circumstances and enriching opportunities. 

Military service makes a distinctive imprint on a family.   Likewise, a  military divorce has a unique set of circumstances and involves some legal issues for additional consideration beyond what’s required in a civilian divorce. In the event of a divorce, it’s important for both partners to know the full extent of their rights and the particular circumstances that will shape their eventual divorce agreement. It is equally important to find an attorney who has experience representing military spouses during a divorce.

Why Understanding Military Divorce Laws is Crucial for Service Members and Spouses

The goal for any divorce is to work toward the best possible outcomes and fairness for both parties – and any dependent children they may have –  in a way that will allow all to move forward without being overburdened by financial limitations.

The first step is to hire a divorce attorney who understands how the divorce process in your state is affected when one or both partners are in service.  For example, a federal law governs the division of military pensions, but different states have different rules that can affect the division of benefits and pensions during a divorce. Sound legal advice about the laws in your state and applying them in a military divorce is essential to avoiding unexpected problems down the road.

The Unique Nature of Military Marriages and Divorces

While the divorce process is the same whether filing for a military or civilian divorce, there are some additional factors to consider.  Families are subject to frequent moves in addition to deployments, and the military has a unique compensation structure. In a military divorce, then, questions arise about where to file for the divorce, how the court will award support, and what benefits will still be available to the non-military spouse after the divorce.

Jurisdiction and residency requirements: In what state will you file for your divorce? The person who initiates the divorce process will file in their state of residence, as long as they’ve established residency there.  In New Jersey, at least one spouse must have lived here for at least 12 consecutive months before filing.  The case may also be filed in any other state where the military spouse is stationed or has residency.  Courts may waive residency requirements if the family has frequently relocated due to military service. It therefore may be possible to file in a state that has more favorable divorce laws, particularly laws regarding military pensions and how they are divided.

Compensation and benefits: During the divorce process, a military spouse must provide their Leave and Earning Statement. This is an additional requirement outside of the income statements and tax returns required for everyone else.  Because military service provides a package of compensation for its members, the Leave and Earning Statement will also disclose the housing allowance, cost of living allowance, and allowances for extra duties that are all part of the compensation package.  All of this will be considered when determining, for example, child support and spousal support during the divorce process.

Health care benefits under TRICARE, the health care program for active duty service members, may also be available to the non-military spouse after a military divorce if they meet the “20/20/20” requirement.  This means the military spouse has served at least 20 years, and the marriage lasted at least 20 years that overlapped with 20 years of military service.  That coverage would end, however, if the non-military spouse remarries or becomes eligible to receive benefits under an employer-provided health care plan. 

A non-military ex-spouse who does not meet the 20/20/20 rule and is not eligible for TRICARE may be able to purchase health coverage through the Continued Health Care Benefit Program.

Protecting Your Rights and Future

In any divorce, it’s important to have legal advice to protect your finances, benefits and child custody.  Just as it’s true that a business divorce attorney is essential for couples who have owned a business, if one or both spouses is in active duty, it’s essential to get your legal advice from lawyers who are experienced in handling military divorce cases.

Avoiding Costly Mistakes

A lack of understanding about the unique circumstances of military divorce can lead to some unintended outcomes. For example, service members may contribute to a Thrift Savings Plan (TSP), which is similar to a 401(k) plan or IRA.  The TSP is sometimes overlooked during a military divorce, even though it can be divided or given in exchange for some other asset.  Be sure to discuss the value of any existing TSP account with your divorce attorney.

Here are 5 Other Things to Know About Military Divorce

1. Military Pay and Benefits in Divorce

   A service member may  purchase a death benefit, called a Survivor Benefit Plan (SBP) when they retire.  With an SBP, a named beneficiary can continue to receive pension payments after the service member’s death. In a military divorce, the court may require SBP coverage for the non-military former spouse.

2. Child Custody and Support in Military Divorce Cases

   Child support is calculated the same way as in civilian divorce cases, but it is based on the service member’s total of entitlements, including base pay, housing allowance, and any other compensation for extra duties.  Decisions about child custody and support must be based on the service member’s full compensation.

3. The Divorce Process When it Comes to Military Members

   The Servicemembers Civil Relief Act protects military spouses from having to respond to a divorce petition while serving in active duty.  A service member who is within 90 days of being deployed, or who is unable to respond to court proceedings due to the demands of their service, can request a stay, or pause in the proceedings, that lasts as long as 90 days. The service member’s commander must verify that they are unable to take a leave to appear in court. The court can also extend the stay, if necessary, until the service member is able to appear in court in the state in which the divorce was filed, or allow the service member to participate by phone.

4. Relocation

   Military families frequently live a transient lifestyle.  The non-military partner may wish to move back to a hometown or closer to family. If children will be relocating with one parent, it’s best to seek advice from a relocation attorney who can assist in filing the required application with the court.

5. Domestic Violence

   Unfortunately, domestic abuse affects families from all walks of life, including military families.  A spouse who feels unsafe should immediately seek help from local law enforcement or a domestic violence shelter, and then consult a family law attorney about taking actions to stay safe.

Seeking Experienced Legal Counsel for Your New Jersey Military Divorce

To get the results you desire for your own financial stability and for your family,  it’s necessary to find an attorney who has experience representing military spouses during a divorce. Questions about  jurisdiction and rules governing military benefits can be complicated, so it’s wise to seek counsel that is experienced in handling your military divorce in New Jersey.

DeTorres and DeGeorge is Here for Your Family

Here at DeTorres and DeGeorge, we provide compassionate representation for our clients. If you are contemplating a military divorce, contact us to schedule a consultation. We can answer your questions about military divorce and guide you through the process.