Service members have rights and obligations that differ from civilians. For this reason, there are several elements the military influences when one or both parties are servicemembers going through divorce.
These elements include:
- where the divorce can be filed;
- how child or spousal support is calculated;
- child custody;
- child visitation; and
- the Servicemembers Civil Relief Act (SCRA).
Servicemembers Civil Relief Act
The SCRA is a law that can potentially affect a military divorce and/or child custody case in a few ways. This act protects servicemembers from any unexpected circumstances at home so they can focus on what they are doing abroad. This means the servicemember can request a delayed court proceeding that could affect the parent/child relationship.
Filing for Divorce
A common occurrence for military spouses is deciding to divorce after a move. Afterall, servicemembers and their families are asked to relocate often. If the couple is married in a different state than the one they’re divorcing in, or one spouse is stationed somewhere else, they may not be sure which state to file in. To get a divorce proceeding under way, the state needs to establish jurisdiction over the servicemember and their spouse.
To establish jurisdiction, you must meet the following requirements:
- the military spouse lives in the state;
- the military spouse is a resident of the state; and
- the servicemember and military spouse agree to give the state jurisdiction.
If you and your spouse don’t live in the state where you were married, that state is irrelevant to your divorce. Only the state you actively live in will govern your military divorce.
Child Custody and Visitation
The laws of the state in which you file for divorce will also determine any child custody and visitation agreements. However, active duty families face some hurtles civilian families don’t. For example, if one spouse is on active duty and gets stationed at a base in a different state or deployed to a different part of the world, it could create problems for the children.
There are two sets of laws affecting spousal support. The first are from the state where the divorce will take place. The second are from the Uniformed Services Former Spouses Protection Act (USFSPA).
The USFSPA is a federal law that requires the military to honor the laws of the state.
These laws generally encompass:
- child support;
- spousal support;
- military pay; and
- military pension.
The USFSPA also requires the marriage to last for a specific amount of time for the spouse to be eligible for benefits.
Former spouses can:
- receive a stipend of the servicemember’s retirement pay if the marriage lasted 10 years or more; and
- continue to access military benefits if the marriage lasted 20 years or more.
With spousal support (as well as child support), the military requires servicemembers to meet their obligations in the divorce decree. If a servicemember doesn’t meet the obligations, they could face military discipline.
Reach Out to The Law Offices of Mark R. Hinshaw, PLC
Military divorces are uniquely challenging and require an attorney experienced with this type of divorce proceeding. Our attorneys have 20 years of experience and have a genuine desire to help military families reach a resolution. sort out their situations.
Call our firm today at (515) 200-7571 or contact us online for a FREE case evaluation.