Military divorce is governed by both state and federal law which can complicate the legal issues. There are also practical concerns such as what happens if a service member is deployed before or after the divorce is granted. Service members and their spouses should be aware of how their case may proceed differently than a civilian divorce.
Where to File for a Military Divorce
Military courts do not grant divorces, so a member of the armed forces must file a complaint for divorce in the same state courts that everyone else does. A divorce must be filed where either the plaintiff or the defendant resides. A person must be a resident of the state of North Carolina for at least six months prior to the filing of a complaint for divorce to meet the residency requirements. Most plaintiffs in a divorce case file the complaint in the state where they reside.
A temporary stay in the state is not the same as permanent residency. If a service member is stationed in a particular area, this may not be enough to be considered permanent residency. Factors such as being registered to vote in a particular state, having a North Carolina driver's license, and paying taxes in the state will help demonstrate an intent to permanently reside within the state.
Serving a Member of the U.S. Military
If you are seeking a divorce and are the non-military spouse, there are special considerations when it comes to serving a person who is overseas. If they are in a hostile area, it may be impossible for a process server to reach them. Otherwise, they may usually be served, and consent to accept service or waiver of service of process may be an option.
Military Retirement and Divorce
The Uniformed Services Former Spouses Protection Act is a federal law that allows state courts to divide military retirement pay. Depending on the length of the marriage, if you are a non-military spouse, you may be entitled to keep certain benefits even after divorce. If you are the non-military spouse, it is important to consult an attorney who understands how retirement benefits may be divided, as this may be one of the most valuable assets in a military divorce.
Members of the military who want to keep their retirement should also consult an attorney experienced at handling military divorce so that they do not agree to give their spouse more than their spouse is entitled to in an agreement.
Child Custody and Military Divorce
An initial determination of child custody is based on the same factors as it is for parents who are not in the military. A judge must consider what is in a child's best interests. If you are not awarded primary custody, you should expect to pay some child support.
When negotiating an agreement regarding custody and visitation, it is important to consider factors like what will happen to the visitation schedule if a service member on active duty is deployed. During a deployment, it may be impossible to continue with the normal visitation schedule, but parents can still schedule visitation through phone or online video services such as Skype. If visitation must be changed due to deployment, consider adding a clause in the visitation agreement to allow for missed visitation time with minor children to be made up.
Another important consideration for visitation and custody agreements is to decide which parent will pay for the cost of transportation when parents live far apart. Many parents decide that the best arrangement is to meet at a visitation exchange location that is in between where they both reside. In some cases, the parent who is going to be having visitation with the minor children will be required to pay for the costs of transportation. The age of the children is important when considering how transportation will be arranged since young children will not be old enough to take a commercial flight alone.
Members of the U.S. military are obligated to support their children and spouse. In addition to the ordinary remedies that may be sought in court, the spouse of a member of the military may request assistance from the service member's commanding officer. Failure to pay support can result in penalties through the military court system. Military pay is subject to wage garnishment, but only after a court order regarding child and spousal support is entered.
Relief Under the Servicemember's Civil Relief Act
Active duty members of the United States military who have been served with divorce paperwork may request a stay of the proceedings pursuant to the Servicemembers' Civil Relief Act. (SCRA) The purpose of the SCRA is to allow members of the U.S. military to focus on their duties defending the country without worrying about how missing a court date could affect their case.
If you are served with paperwork for a divorce, it is important to act right away. Even if you are deployed overseas, you will be expected to notify the court if you are requesting a stay of the proceedings pursuant to the SCRA. The SCRA can help you obtain a stay of the proceedings during your time on active duty and for a short period of time after you return from active duty.
Benefits of Hiring an Attorney
It is important to consult an attorney with knowledge about how a military divorce is different than a civilian divorce so that your rights are protected. A spouse who is married to a member of the military may be entitled to rights and benefits that they would not be entitled to in a civilian divorce.
You should never sign an agreement regarding property division, child custody, and/or child support without first consulting an attorney because these agreements can be very difficult to change later. You want to make sure that the agreement is one that works for you and your family, or else you will likely need to hire an attorney later to try to get the agreement modified.