Military Divorce Services

Military personnel have some legal protection from divorce proceedings that are not granted to the public at large. Under the Servicemembers Civil Relief Act (SCRA), military men and women are protected from lawsuits including divorce proceedings to enable them "to devote their entire energy to the defense needs of the Nation."

A court may delay legal proceeding for the time that the service member is on active duty and for 60 days following active duty.

A state court won't be able to hear a case unless it has authority. The authority of a court to hear a case is called jurisdiction. Therefore, if the spouse of a military member is the one seeking a divorce, the active duty spouse must be personally served with a summons and petition for divorce in order for a state court to have jurisdiction over the military member.

If the active duty spouse is overseas or deployed, you may request that military authority serve your spouse, but your spouse must consent to service. If your spouse won't consent, you may request the court to appoint an officer of the court to serve the papers unless your spouse is serving on a ship or at a shore installation.

Many states allow a military member or spouse to file for a divorce in the state where the military person is stationed, even if neither the military member nor the spouse is a resident of that state. These states will often reduce or eliminate the residency requirement for military divorces.

A military member or spouse has a choice of the following three states in which to file for a divorce:

• State where the spouse resides
• State where the military member is stationed
• State where the military member claims legal residency (place where military member plans to live after discharge or retirement)

Although either spouse may file for divorce in any of the three locations listed above, the allowable grounds for divorce and property distribution are governed by the laws of the state where the divorce action is filed.

While each state may have different laws regarding how family law cases are to be handled and property divided, the federal government has enacted the Uniformed Services Former Spouses' Protection Act (USFSPA). It governs the calculation and division of military pension benefits.

The USFSPA authorizes direct payment of a portion of a military retiree's pay to the former spouse and extends some base privileges to certain former spouses.

USFSPA allows state courts to treat disposable retired pay either as property solely of the military member or as property of the member and his spouse in accordance with the laws of the state court. The USFSPA doesn't contain a formula for calculating the appropriate division of retired pay. Although up to 50% of a military member's retired pay may be awarded, it's the state laws that'll determine the exact division of the retired pay.

Grounds for Divorce: Some states are "no fault" states while others have "for cause" grounds for divorce, and some have a combination of both. A "no fault" divorce means the only basis for divorce is that the marriage is irretrievably broken. Traditional "for cause" grounds include adultery, abandonment, habitual drunkenness, and mental cruelty.

Property Division: States follow either equitable property or community property principles:

• Equitable Property States: Each spouse receives a distribution of marital property (acquired during marriage) that's considered fair and equitable, but not necessarily equal.
• Community Property States: Each spouse is entitled to one-half of all marital property.

"Separate property" (owned before marriage or received through inheritance/gift) is typically retained by the owner in both systems.