There are many issues unique to military divorce cases that rely on you being familiar with your civilian spouse divorce rights. Division of pensions and military retirement funds, long-distance parenting plans when a party is stationed overseas, to name only two. By making use of the information that we have for you on our website, you’ll have a better understanding of how military divorce issues will be handled. To get started, here are a few tips for the civilian who files for divorce from his or her military spouse.
The Court Must Have Personal Jurisdiction Over the Service Member. Keep in mind that when a military member files for divorce, he or she consents to the state court’s jurisdiction. When a nonmilitary spouse files for divorce, however, establishing personal jurisdiction over the military member is more complicated, especially if active duty.
The military spouse must be personally served with the divorce papers, so if deployed or overseas, effecting personal service may be quite difficult. When on a military base or aboard ship, for example, military regulations must be complied with — a process server cannot simply come aboard and serve a sailor with papers. When in a foreign country, personal service on the military member will have to satisfy the laws of the foreign territory, often falling under The Hague Convention or international treaty. When child support is involved in the family law case, service is somewhat easier. This is because there are uniformed military officials assigned to assist with personal service on a member when child support is an issue.
Be Prepared for the Servicemembers Civil Relief Act (SCRA). Under the Servicemembers Civil Relief Act (SCRA), the military spouse can request a stay, or suspension, of the divorce proceedings for a 90-day period. The purpose of the delay is to give the member additional time to respond to the petition and prepare for a trial. If the military member seeks to stay the proceedings, then he or she provides a statement that military duty prevents participation and appearance in court, and then includes a date when availability for appearance is possible. The member’s commander may provide a similar statement, in the alternative, and include words to the effect that leave is not authorized.
Division of the Military Pension Requires Careful Planning. Under Arizona law, the portion of the military pension earned during the marriage is a community asset that must be divided in the divorce. With marriages of long duration, this pension may be quite substantial, and amount to $500,000 to $2,000,000 or more (when cost of living and inflation increases are factored in).
Be mindful that there are federal laws of jurisdiction that must be carefully adhered to. Namely, jurisdiction over the service member’s military pension is based on residency (domicile) or consent of the member. Furthermore, if the military member is on active duty, then there must be a certification in the court’s final judgment, the divorce decree, that all SCRA requirements were complied with.
To have the pension divided at the source of the funds, which is the Defense Finance and Accounting Service (DFAS) (as a QDRO would require of a plan administrator over a civilian pension), then certification of the following is also required:
- The marriage was 10 years or longer in duration, and
- During that marriage, for 10 years the military spouse was on active duty or was earning retirement points.
Even if your marriage lasted less than 10 years, the military pension will still be included for division as community property. But because the DFAS will not be sending you a payment directly, enforcement of your right to a share of the pension will always be a potential problem should your ex-spouse be non-compliant.