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Military Divorce: What You Should Know Going In

On Behalf of | Jan 19, 2021 | Divorce

Military divorces are just like civilian divorces, right? Not really…

Each spouse can hail from a different state, they can both be stationed in a state or country far removed from where they grew up or where they got married, and they may even own property in a third state far away from their current location.

If you or your spouse is in the military and contemplating divorce in or near Lithonia, Georgia, let the E.N. Banks-Ware Law Firm LLC explain the legal options and ramifications to you, so you can choose the proper path. Attorney Banks-Ware stands ready to represent you in every aspect of your divorce proceedings.

Which State to File In

First off, divorce in the military is considered a civil matter. The military maintains no divorce judges or courts. That leaves the choice of where to file for divorce as perhaps the number-one decision.

The military spouse and the active-duty member, or a married active-duty couple, might have roots in states other than where they’re deployed, certainly if they’re overseas. A non-military spouse may even reside in a state, or country, different from the deployed spouse.

Convenience certainly can be a huge factor in choosing where to file. You don’t want to have to fly from Georgia to Washington just to meet in divorce court.

Generally, when it comes to choosing in which state to file, factors to consider include where you vote, pay taxes, bank, possess a driver’s license, or even own property.

In addition, different states have different laws regarding divorce. Many are “no-fault,” meaning you don’t have to do much except assert your irreconcilability — stating that the marriage is “irretrievably broken” — as a married couple. Georgia is one such state, so it is possible to work out all details in advance and file for an uncontested divorce to simplify matters and speed things up.

The bottom line is whichever state you choose to file for your divorce becomes the state that will determine what grounds are required for divorce, property and asset distribution, child custody, and child and spousal support issues.

Servicemembers Civil Relief Act

There are some instances where the federal government has passed legislation to protect servicemembers and their spouses during and after divorce. One such instance is the Servicemembers Civil Relief Act (SCRA). The SCRA provides a stay on civil proceedings, including divorce and child custody proceedings, while the military member is on active duty and unable to attend, and in some states for up to 90 days after the active duty ends.

In addition, the SCRA, under certain circumstances, protects against default judgments for failure to appear or failing to respond to a lawsuit.

What Happens to theSpouse’s Military Pension?

When it comes to the division of a service member’s pension following the divorce, this is another instance in which the federal government stepped in legislatively. As with all divorces, depending on the state and other factors, retirement accounts are subject to division along with other assets, including property, automobiles, furnishings, and the like.

The Uniformed Services Former Spouse Protection Act (USFSPA) provides certain benefits to former spouses of military personnel and allows state civil courts, while following USFSPA, to award these benefits. Divorcing spouses are entitled to share in the service member’s pension provided they meet the 10/10 rule: 10 years of marriage overlapping with 10 years of military service.

In addition, the USFSPA allows unmarried former spouses to receive medical, commissary, exchange, and theater privileges under the Morale, Welfare, and Recreation Program when they meet what is called the 20/20/20 rule:

  • The former spouse was married to the servicemember for at least 20 years at the time of divorce

  • The service member performed creditable retirement service for at least 20 years

  • The divorced spouse must have been married to the service member during those 20 years of creditable service

Military Divorces Overseas

It’s not always the case that both parties involved in a military divorce are living in the United States, either together or separately. One may be stationed overseas, and the spouse may or may not be together with the stationed service member.

Is it possible to get divorced overseas as an American citizen? Though it might be technically possible to divorce in a foreign country, U.S. courts back home may not recognize the legality or provisions of the divorce. Returning home, you might have to restart the whole process. In a nutshell, it is better to divorce stateside.

Your military legal assistance office overseas can advise you, especially if you’ve purchased property overseas. Also, they can help you relocate family members and personal property back home before your tour of duty ends to facilitate the process.

Family Law AttorneyServing Lithonia, Georgia

A military attorney may be able to help you with preliminary paperwork but cannot represent you in a civil proceeding such as divorce. Both you and your spouse will need to retain separate attorneys to best represent your own interests.

With more than 30 years of experience in family law and helping individuals and couples legally resolve disputes and custody issues, you can rely on the E.N. Banks-Ware Law Firm LLC to best represent you and your interests. Attorney Banks-Ware serves clients in Lithonia, Decatur, Lawrenceville, Conyers and really anyone in the greater Atlanta, Georgia area. Call today for an initial consultation.