Military Divorce

Military divorces present several added layers of complexity to the typical divorce. Here's an example: There are up to three separate jurisdictions where the divorce can be filed:

  • The legal residence of the military service member

  • The legal residence of the spouse

  • The location where the service member is stationed

Another issue complicating military divorce is how to divide the service member's retirement pay. The Uniformed Services Former Spouse Protection Act (USFSPA) was enacted by Congress in 1982 to deal with this important issue, and it allows the state courts to determine whether retirement pay is separate property of the service member or if marital property is to be divided according to state laws of the jurisdiction.

Specific regulations must be adhered to for the Defense Department to make retirement payments directly to a service member's former spouse (versus ex-spouses having to rely on service members making the payment themselves):

  • The spouse must have been married to the service member during at least 10 years of that person's military service.

  • Retirement payments coming directly from the Defense Department may not exceed 50 percent of the service member's pension.

  • Alimony and child support payments may also be made from the service member's retirement pay.

  • The total of retirement pay plus these payments coming directly from the Defense Department may not exceed 65 percent of the service member's pension.

It is important to note that even marriages of less than 10 years may result in the former spouse receiving a portion of the service member's retirement pay. The major difference is that the payment will not come from the Defense Department because the couple has not met the 10-year rule discussed above.

Another important feature of military divorces that adds complexity is that legal proceedings may be delayed until 60 days after the service member's active duty comes to an end. The court decides that.

If you are served with divorce papers while you are on active duty, you must make the court aware of your duty, as the stay (delay) is not automatic, but up to the court's discretion. In some cases, a service member facing a divorce will do better not to exercise the right to a delay, as in the case of retirement pay.

If you or your spouse is serving in the military or has served in the past, call Hecht Family Law at 678-926-9234 and we will help you navigate the process of military divorce and work toward your desired outcome.