Military Divorce

Written by: Avvo Staff

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A military divorce is a divorce between a member of the armed services and his or her spouse. The spouse may or may not be in the military. For the divorce to fall under military designation, the military member must be a regular or reserve member of the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard and Reserve, Public Health Service, or National Oceanographic and Atmospheric Administration. Specific rules and regulations differentiate a military divorce from a civil one.

Key differences between a civil and a military divorce

State courts grant both civil and military divorces, but there are key differences between a civil and a military divorce. While the military has no authority to grant a divorce, certain aspects of a military divorce are subject to unique rules and regulations. These include:

Division of property. The Uniform Service Former Spouse Protection Act (USFSPA) allows military pensions to be considered divisible property, rather than income, as in civil divorces. This is partially because military pensions may be the largest asset a military member has.
Military benefits. Medical benefits and commissary and base exchange privileges are granted to a former spouse based on the length of the marriage and the amount of time the marriage overlapped service time. If the marriage lasted at least 20 years, overlapping with 20 years of the military spouse's service, and those 20 years are creditable for retirement pay, the former spouse retains full benefits and privileges. If the former spouse remarries, benefits are revoked, but they can be reinstated if he or she divorces again.
Jurisdiction. Military members and their spouses can file for divorce in the state where the military member is stationed, where the military member legally resides, or where the spouse resides.

Division of retired pay following a military divorce

Former spouses may be awarded up to 50 percent of a military member's net retired pay. Retired pay earned before a marriage and after a separation is not considered divisible property.

USFSPA governs how retired pay is distributed. If the state courts grant a former spouse a percentage of retired pay and the marriage lasted 10 years concurrent with service time, the former spouse can be paid directly by the Department of Defense. If the marriage lasted less than 10 years, the military member receives the entire benefit and must pay the allocated percentage to the former spouse. Since the USFSPA allows retired pay to be considered property, retired pay does not end if the former spouse remarries.

If you seek a military divorce

Because a military divorce can be complex, it's critical to choose a lawyer familiar with military law (or hire a consultant to work with your lawyer). It's important to note that divorce proceedings may be delayed if the military member is on an extended deployment or overseas, in accordance with the Service Members Civil Relief Act.