Military Men and Women Face Unique Divorce-Related Challenges

The stress of war takes its toll on even the most prepared service men and women and their spouses. Sadly, many of them find upon returning from an extended deployment (like those increasingly common for soldiers stationed in Iraq and Afghanistan) that their marital relationships have suffered irreparable damage in the interim. Sometimes the damage comes from the lengthy separation itself; other times, physical or emotional trauma suffered while deployed proves to be too much for the service member or his or her partner to handle, ultimately leading to a divorce filing.

Not only do military divorces pose the usual stresses involved in a civilian proceeding, they also entail rules, regulations, worries and issues unique to military life.

Filing for Military Divorce

Unlike traditional civilian divorces, there are three possible locations where a military divorce can be filed:

  • The servicemember's state of residence
  • The servicemember's spouse's state of residence (if different)
  • The state where the servicemember is currently stationed

The jurisdiction where a divorce proceeding is filed can have a huge impact on the ultimate result the proceeding. State laws govern every aspect of a divorce, including whether or not a period of separation is required, how child custody determinations are made and whether or not alimony will be awarded. Differences in how states treat fault (specifically whether or not a state requires grounds for divorce), and how they handle division of marital property can mean the difference between a quick, successful resolution and a protracted battle.

It is important to note, however, that regardless of where a divorce action is filed, the court in that state does not have jurisdiction over an active duty servicemember until he or she has been personally served with notice of the filing. Furthermore, an active duty servicemember cannot be found in default for not timely responding to a filing; in fact, an active duty servicemember can - under the Servicemembers Civil Relief Act (50 USC § 521) - have a divorce proceeding stayed for the duration of the active deployment and for 60 days thereafter to ensure that, in the words of the statute, active duty servicemembers can "devote their entire energy to the military needs of the nation."

How is a Military Divorce Different?

One of the obvious differences between a civilian divorce and one involving a servicemember shows itself when there are children involved. Child custody and support determinations are made all the more difficult when one parent is an active duty serviceperson and could be facing a lengthy deployment abroad.

Custody determinations are made using the "best interests of the child" standard; this means that judges award custody by considering a number of factors (including the age and health of parents and children, stability of living arrangements, an older child's preference, and more). That is why child custody can be one of the more difficult decisions facing judges hearing military divorce cases - judges obviously want to be respectful of the sacrifices that active duty military servicemembers make but have to balance that with making decisions that will truly prove to be most beneficial for the children.

Another key difference between military and civilian divorces is the division of government benefits granted to servicemembers, including commissary rights, health care coverage and retirement/pension pay. In a typical civilian divorce, retirement accounts are usually treated as community property and included as part of the ultimate property settlement. The same is not necessarily true of a military divorce, although former military spouses are granted some rights under the Uniformed Services Former Spouse Protection Act (USFSPA).

Even the protections of the USFSPA don't automatically ensure that all of a servicemembers' various forms of compensation are included in the pool of marital property to be divided in the event of a divorce, though. Depending on the unique factual circumstances of the particular situation, military health benefits, retirement pay, commissary privileges and housing allowances may or may not be available to the non-military spouse. There are constraints present in the USFSPA and in other laws governing military divorces that are best understood by a family law attorney well-versed in the nuances unique to divorces involving servicemen and women.