Guide to Issues of Military Divorce and Child Custody

Mother and son reuniting after military deployment

Both active-duty military members and their spouses perform an invaluable service to this country. But that service often puts a great strain on a marriage. As a result, the divorce rate is higher for couples when one spouse serves in the military (and higher still when the spouse in the military is the wife).

Divorce is governed by state law, but there are also federal laws in place that affect the rights of military service members in divorce. If you are facing a military divorce, there are things that you must know to protect your interests, whether you are in the military or married to someone who is. Working with an experienced military divorce lawyer is a must; an attorney who does not regularly handle military divorces may not understand the interplay between state and federal law in these family law cases.

Filing for a Military Divorce

A court cannot hear any divorce case, including a military divorce, unless it has “personal jurisdiction,” or power to make decisions regarding a person being sued. In order for a court in Maryland, Virginia, or the District of Columbia to have personal jurisdiction over the parties to a divorce, at least one member of the couple must live or be stationed there.

Ordinarily, the person who files for divorce must arrange to have divorce papers served upon the other spouse. A spouse on active duty must be hand-served with a copy of the divorce complaint and summons before the lawsuit is considered to be active. When the spouse who is to be served is deployed, or otherwise not easily reached, that can present a challenge. In situations where the service member does not intend to contest the divorce, he or she can sign a waiver to that effect, making hand service of the divorce papers unnecessary.

Federal Laws That May Affect Your Divorce

The government recognizes the fact that service constraints make it more difficult (if not impossible) for those on active duty to participate in a lawsuit – including a divorce. Accordingly, there are federal laws in place to protect servicemembers from being disadvantaged when they are unable to respond to a divorce petition or other legal pleadings.

The Servicemembers’ Civil Relief Act (SCRA) gives individuals 90 days after the end of their active duty to respond to a divorce petition. (in Maryland, civilians must ordinarily respond to a petition within 30 days.) This expanded window of time to respond allows the servicemember to focus on their military duties while on active-duty, and gives them time to secure a divorce lawyer to represent them.

Another important law that affects those involved in a military divorce is the Uniformed Service Former Spouses’ Protection Act (USFSPA). The USFSPA prevents military retirement benefits from being treated as joint assets in a divorce unless certain criteria are met. Only spouses who have been married to the service member during ten years of active duty may be eligible for a portion of their retirement benefits in divorce. Spouses for whom ten years of marriage and ten years of the military spouse’s active-duty overlap may be eligible to receive retired pay payments directly from the Defense Finance and Accounting Service (DFAS).

It is important to know that the USFSPA does not automatically confer retirement benefits upon the servicemember’s spouse; it simply authorizes the state court that it may award (or transfer) benefits in the judgment of divorce.

Military Divorce with Children

Child custody and support can be challenging to deal with in any divorce – including a military divorce. Custody and support, like other aspects of divorce, are determined according to state law. However, as with divorce in general, there are unique circumstances that apply to service members, so it’s important to work with a divorce lawyer who understands these sensitive issues and how to navigate them for you.

Custody and parenting time are naturally more difficult to manage for parents who are in the military. Unlike with civilian families, it may not be practical to have an access schedule in which the child moves back and forth between parents every few days or weeks. It can be a challenge to balance a child’s need for stability and predictability with the reality of a parent who may be deployed for months at a time. An attorney experienced in these matters can help parents create a parenting schedule that meets the needs of both the child and the parents.

Like any parent, a parent in the military may be required to pay child support based upon their income. Income considered for child support purposes includes not only military base pay, but also considers payments reflected on the leave and earning statement, Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) in the calculations. A divorce lawyer experienced with such granular military issues can ensure that the proper income amounts are used to calculate child support.

The bottom line is that if you or your spouse are in the military and plan to divorce, you need to work with a divorce attorney who is familiar with both military rules and with state law. To learn more about military divorce and your rights, contact Strickler, Platnick & Hatfield to schedule a consultation.

Categories: Child Custody, Divorce