Between young marriages, deployments, frequent moves and spousal sacrifices, military marriages face significant challenges. There are times when the marriage hurdles are overwhelming and the relationship ends. While no divorce is easy, military divorces have a few unique circumstances and additional legal elements.
Where to file for divorce?
When filing for divorce, the service member and his or her spouse have three choices for where to file. The couple can file in the state where either the husband or wife has legal residence, the state where the military member is stationed or the state where the military member claims residency, if different from the spouse. When considering where to file, it is important to scrutinize how the state handles military pensions and child support calculations.
Texas is a community property state. The Uniformed Services Former Spouse Protection Act (USFPA) allows Texas to treat military retirement pay as marital property which means it can be divided during divorce. In order to be eligible to have the DFAS pay the spouse’s share directly per a Military Retired Pay Division Order, the couple must have been married for at least ten years while the member performed ten years of credible military service. If the “ten and ten” requirement is not met, the Texas divorce court may still take the community property value of the military retirement pay into account in dividing the marital estate, but there can be no direct payment from DFAS.
Child support calculations
With the exception of the Air Force, each branch of the military has rules on how much the service member parent should pay for child support. The amount is generally based on base pay, Basic Allowance for Housing, Basic Allowance for Subsistence and any other pay the service member receives.
In Texas, the court requires the noncustodial parent to pay a percentage of his or her “net resources” (determined by Texas law) to the custodial parent for the care of the child or children. The percentage is 20 percent for one child and increases with the number of children Once the child support payment amount has been determined, the wage garnishment order must be submitted by the service member to the Defense Finance and Accounting Service.
In order to provide active-duty service members with ample time handle divorce proceedings, the Servicemembers Civil Relief Act (SCRA) allows the service member to file a stay to delay divorce proceedings while on active duty. The Act was designed to allow military service members to focus on their duties instead of on domestic problems until their duties no longer interfere with participation in the divorce proceedings.
JAG is not enough
While military service members and their family members have access to free legal advice from Judge Advocate General’s Corps (JAG), JAG officers are generally not licensed to practice family law and can only provide basic legal information. The JAG services offered do not include preparing or filing divorce or separation documents and a JAG officer cannot represent you in court. When dealing with a domestic situation you need to hire a civilian attorney.
Military domestic situations are governed by a mix of military regulations, state divorce laws and federal statutes creating a hodgepodge of complications for a divorcing couple. Although divorce and separation is a civil matter, having an attorney experienced with military divorce is beneficial to all parties.