No matter how you slice it, divorce is no picnic. In addition to the myriad of legal issues that often must be confronted. There is also the need to deal with the time and the cost of dealing with everything cleanly and competently. Military divorces are even more complex because they can involve federal laws.
It is possible to reduce the costs and the time constraints in a divorce with some solid planning with a divorce attorney who is extremely familiar with the military divorce process.
More often than not, when a divorce is overly complex and hard to deal with, it’s because the people involved began their divorce without proper preparation. Too often, they are unaware of what to expect and they will sometimes try to handle it all on their own. Whether yours is a contested divorce, or an uncontested divorce, in which all matters have already been settled, you still have to prepare for potential surprises.
Federal Law and Military Divorce
All divorces are governed by state law, not federal law. Certain federal statutes apply to a military divorce. If you or your spouse are in the military, the base legal department can provide either spouse with assistance on divorce and child custody, the details surrounding the Servicemembers Civil Relief Act (SCRA) and other family law issues. Additionally, the military has special rules and laws controlling military members’ obligation to support a spouse and children.
Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act (SCRA) is a law designed to protect the legal rights of service members’ legal rights when serving on active duty. Typically, when one spouse serves divorce papers on the other partner, the recipient must respond within a certain time period, but under However, under the SCRA:
“A “stay” or postponement of a civil court or administrative proceeding is extended if the service member proves he or she is unable to attend because of duty; or
Certain protections on default judgments for failure to respond to a lawsuit or failure to appear at trial are granted.”
Generally, when one spouse “serves” divorce papers on the other spouse, the responding spouse must file a formal response, or “answer,” within a specific number of days. Then the court goes forward with scheduling the next steps in the divorce (such as mediation and/or hearings before the court). However, the “Servicemembers Civil Relief Act” (SCRA) can change all that.
The SCRA allows active-duty service members to request a “stay” (a delay in proceedings) in a divorce or other claims (such as spousal support, custody, child support, property division, and military division) if their duties prevent them from participating in or responding to the court action. (This is true for other types of non-criminal court cases, as well.) The initial “stay” is for at least 90 days. The court can grant extensions after 90 days, but one can’t postpone the divorce forever. The purpose of the “stay” is to delay the court action as long as the military member’s duties interfere with their participation.
Base Legal Services
Free legal services are also available on many other legal issues to all service members and their eligible family members, via these legal assistance offices. Generally speaking, the military sees divorce as a private matter and believes it should be addressed by a civilian court. Despite that, however, as noted, military spouses have access to military legal assistance services at no cost through base legal offices at each military installation.
It is also important to note that the “free” legal assistance attorneys cannot represent clients in court. Therefore, if you have a contested divorce, you will need your own attorney.
In any divorce, a service member and their dependent spouse will need separate attorneys to advise them, with the intention of ensuring that both parties are able to receive independent and confidential legal advice, while also avoiding any potential conflicts of interest.
Communications between a client and a legal assistance attorney are private and confidential. While military legal assistance attorneys may not be able to represent service members or their families in family court, and they may not be able to prepare and submit court documents, they can sometimes provide helpful advice on a range of legal issues regarding divorce and child custody, income taxes and wills, estates and trusts.
For divorce or legal separation situations that require representation in family court or involve contested issues such you’ll want to consult with a civilian attorney. Military legal assistance offices can help you get in touch with such attorneys.
What You Should Know About Overseas Divorce
Generally, a military member should not file a divorce overseas. Another country can be extremely complicated, since many U.S. courts may not recognize a foreign divorce.
Divorce laws allow service members or their spouses to file for divorce in either the state where the service member is currently stationed or the state where the service member claims legal residency or the state where the non-military spouse resides. Before deciding to file for divorce while living overseas, consider speaking to a civilian attorney or the military legal assistance office if you own property overseas, such as a house. In many cases, family members and their property may be brought home at government expense prior to the end of the service member’s tour of duty.
Before choosing where to start the divorce, it’s important to know how the state in which you file handles the division of military pensions. The “Uniformed Services Former Spouses’ Protection Act” (USFSPA) is the federal law governing the division of military pensions, and it says that the state of legal residence of the military member has the power to divide the military pension in a divorce.
Therefore, if you file for divorce in a state that is not the military member’s state of legal residence, then the court may not have the authority to divide the pension. (Note: The military member can still consent to the court’s division of the pension.) Also, some states have other laws that can affect what happens to a military pension, which makes such divisions complicated enough to require advice from an experienced divorce attorney to avoid the potential traps and other problems. That is why it is important to know how that state might handle such issues and others before you file.