Whether you are looking to file a simple no-fault divorce or your case is more complex, our firm can help. We will walk you through your divorce in a professional and caring manner, and we’ll make sure you stay well informed.
The Federal Service Members Civil Relief Act of 2003 requires a person seeking a divorce to state their spouse is not a member of the U.S. armed forces. This rule prevents spouses from divorcing military members who would be unable to attend divorce proceedings.
If your spouse is a member of the military, you can pursue a divorce as long as they consent. They must also sign a defendant’s affidavit of consent.
Because you and/or your spouse is an active member of the military, the Uniformed Services Former Spouses’ Protection Act (USFSPA) may affect how you divide your assets. The USFSPA addresses questions about former spouses’ eligibility for base privileges such as:
Under the USFSPA, a former spouse does not automatically get a portion of the service member’s retirement pay, and there are specified requirements to qualify.
Aside from a few added rules, the military divorce process is much like civilian divorce. You will need to agree on arrangements for the following:
Many of the forms you complete will also have the same information. In some states, you may file for a no-fault divorce if you and your spouse have no disputes. If your opinions differ regarding child custody or dividing assets, however, an experienced divorce lawyer can mediate your dispute and help you draft a settlement agreement. After you sign, the document is legally-binding.
A common question for families with spouses in the service is determining where to file for divorce. Many military families move around a lot and do not necessarily meet the minimum time requirement to establish residency in order to file. For such couples, there is a presumption that where they enlisted can be used and is their home jurisdiction. Unless there is clear evidence that the couple intended to put down roots elsewhere.
If you are a military member and are deployed, you likely have a few options for jurisdiction when filing for divorce. These might include:
Many military members have these additional options, because states frequently eliminate the residency requirement when an active duty service member wants to file for divorce.
When going through a divorce clients often ask attorneys what can and will be divided. The general rule is that all items considered “martial property” are divisible; a definition we get from the law. Of course there are exceptions to this rule and as a result, however this is not always cut and dry. This becomes even a bit more complicated when one party (or both) are service members.
Specifically, this becomes an issue when dealing with military retirement benefits. Military retirement benefits are subject to division as marital property, military disability payments however, are not. These two intersect when a service person opts to change his or her retirement payout into disability payments. What a spouse previously thought he or she was entitled to could now be protected property. It is important to know what is classified as what type of benefit and plan for an unexpected change.
Family life is complicated enough when one spouse is active in the military. However, when a military couple divorces the complications can become even more significant.
A divorce attorney can help a divorcing military spouse:
We can help if you or your spouse is an active service member in the United States Army, Navy, Air Force, Marines or Coast Guard. Contact Petrelli Previtera, LLC at (866) 465-5395 for professional legal advice.