Legal Considerations for Military Families with Dual Service Members in Divorce

Military Divorce: Complicating an Already Difficult Matter

Going through a divorce is a challenging time for anyone. Unfortunately, the process is typically more challenging for the men and women of the U.S. Armed Forces. This is true when just one spouse is enlisted, but when both are serving, things become more difficult. There are unique legal considerations for military families with dual service members in divorce.

The challenges faced by service members occur for a variety of reasons. From logistics to the intersection of federal and state law, there are simply more aspects of divorce law that military members have to deal with. Understanding the most important considerations in this legal area can help dual service member families better navigate these difficult issues.

Issues With Jurisdiction and Filing

While many former partners who seek a divorce are no longer living together, the majority of them still live in the same state. After all, no one wants to leave behind everything they know in their community simply because their marriage has ended. This means that dealing with jurisdictional issues are the exception rather than the rule.

However, this common situation is very different for military members. After all, the U.S. Government can station service members across the globe. While those who wear uniforms may take their orders from the federal government, they’re still required to follow state laws when going through a divorce.

Unfortunately, states have varying residency requirements – although certain states will allow service members stationed in the state to file for divorce regardless of formal residency.

Child Custody and Parenting Plans

One of the most important considerations for military families with dual service members in divorce is child custody. The problems inherent to this issue are again related to military deployments and relocations. After a divorce, two parents may be stationed prohibitively far from each other. This can make things difficult for youngsters.

Unfortunately, the courts cannot do much to remedy this situation. They still have to make decisions based on the perceived best interests of the children involved. Frequent moves or deployments may play a key role in the court’s determination. Military parents are also required to have Family Care Plans, which outline caregiving arrangements during deployments.

A judge may review the Family Care Plan prior to making a custody determination. Finally, there might be situations where deployments necessitate temporary custody modifications. Sadly, this means that the courts could be involved long after the finalization of a divorce.

Military Specific Provisions

Most of the legal considerations for military families with dual service members going through a divorce relate to the difficulties of deployment and relocation. However, there are also specific considerations that relate directly to federal law focused on the Armed Forces. The two most important laws are the SCRA and the USFSPA.

Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act (SCRA) provides protections for military members going through a divorce. One of the most important relates to requesting a stay of proceedings if their duties interfere with the ability to participate in legal matters. In practice, this means the 30-day response deadline after a divorce filing will not apply to active duty members.

Uniformed Services Former Spouses’ Protection Act

An important consideration for any divorce is the division of assets. The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows state courts to treat military retirement pay as divisible property. The 10/10 rule (10 years of marriage overlapping 10 years of service) determines direct payment eligibility from the Defense Finance and Accounting Service (DFAS).

Decisions must also be made on other benefits issues, such as Thrift Savings Plans (TSPs) and Survivor Benefit Plans (SBPs). Speaking with an attorney to decide how to handle these matters is advisable.

Spousal Support and Alimony

Spousal support payments are not uncommon after a divorce. However, this is another area where dual service member families can face increased complications. State law dictates how alimony orders will be awarded, and the courts will consider the relative earnings and earning potential of each spouse.

In situations where both parties earn roughly the same, a court may not even grant alimony. However, such an outcome is potentially rare since the impact of military careers on educational and career opportunities will also need to be considered. Additionally, statistics show that military marriages end sooner on average — which can lessen the alimony burden of a paying spouse.

Could Matters Be Simplified by Working Together?

When looking at the key considerations for military families with dual service members in divorce, many of the underlying problems are avoidable. In fact, the majority of complications in any divorce arise because the parties involved cannot reach an agreeable solution that works for everyone. This can greatly increase the difficulty of the divorce process.

When it’s possible to avoid disputes, you can get on with your life sooner. The courts prefer when divorcing parties can reach their own agreements, so working with your former partner is ideal whenever possible. Even if it takes the help of an experienced legal professional to get things moving, it’s typically better to make your own decisions than to let a court decide.

Should You Hire an Attorney?

Whenever former partners opt for a divorce, the question of whether they should hire an attorney invariably arises. In almost all cases, these people can benefit from seeking legal counsel. The simple fact is that divorce law in America is complicated, and even when the parties choose to end things amicably, the legal requirements can make the process burdensome.

Unfortunately, the level of difficulty becomes exceedingly higher for military personnel. The legal considerations for military families with dual service members going through a divorce are incredibly complex. This is disheartening, as the people who have already given so much are forced to navigate an unfairly convoluted process.

That’s why working with a civil attorney that understands military divorces can provide you guidance to alleviate the complexity of the legal system. Therefore, a military divorce attorney is likely in your best interest. At Khosroabadi & Hill, our legal team is here to assist. Contact us at (858) 240-2093 to schedule your free consultation.