When military service members divorce, there are laws and considerations that don’t apply to divorces where neither spouse is in the military. Whether you are the service member or you are married to a service member (or both), you should understand what to expect.
Like all divorces, a divorce involving a service member is governed primarily by state law. However, there are some federal laws that apply, including the Servicemembers Civil Relief Act.
The Servicemembers Civil Relief Act
One of the first things you may learn as a service-connected person is that military spouses are protected against most court proceedings while they are on active duty. This is a result of the Servicemembers Civil Relief Act, or SCRA. Since divorce is a civil action, the service member can apply for a “stay,” or temporary delay of the divorce while they are on active duty or, at the court’s discretion, within 90 days of returning from active duty.
That means that your divorce proceedings could take longer than they would if neither of you were in the military. It does not mean, however, that no civil actions can ever be brought against an active-duty service member.
Dividing military benefits and pensions
You may have heard that spouses of military members are not entitled to share in military pretirement pay, including benefits and pensions unless they have met the “10/10 rule” or the “20/20” rule. This rule refers to the overlap of time served in the military with the length of the marriage. For example, if you were married to your spouse for 10 years and they also served in the military for 10 years of the marriage, you would meet the “10/10 rule.”
In reality, the 10/10 and 20/20 rules only affect how the spouse will be paid, not whether they deserve any share in the marital estate. Spouses who qualify under these rules may be able to receive direct benefit payments from the military and may also qualify for certain lifetime benefits. Regardless of the length of your marriage, the spouse of the service member will be entitled to a share of the couple’s property. In North Carolina, marital property and debt are to be divided equitably in all cases.
The primary federal law involved in the division of military retirement pay is the Uniformed Services Former Spouses’ Protection Act, or USFSPA. It allows states to divide military retirement pay as part of the marital estate, but it does not provide a formula for how to do that. Therefore, state laws apply. The valuation and division of a military retirement account is a complicated process, especially if part of your spouse’s pension or benefits were earned prior to the marriage. The Court may use what is known as a “coverture fraction” which takes the years of marriage and divides them by the total years of service to calculate the marital portion of your spouse’s military retired pay.
Spousal and child support
Spousal support (alimony) and child support can be paid directly through wage garnishment or by voluntary or involuntary allotment. This is done to ensure that the service member meets family support obligations. There are special regulations for military members which require them to provide a basic amount of family support. These regulations are separate from any court-ordered requirements.
Military divorces are handled somewhat differently from other divorces, so it is important to work with an attorney who has experience in military divorces and is familiar with the various rules and regulations regarding servicemembers.