Military Divorce Guide
A specialized guide to divorce involving military service members. Understand the Uniformed Services Former Spouses' Protection Act (USFSPA), military pension division, deployment considerations, and unique aspects of military divorce.
What You'll Learn
- ✓Understand the Uniformed Services Former Spouses' Protection Act and its impact on military divorce
- ✓Know how military pensions and benefits are divided in divorce
- ✓Learn how the Servicemembers Civil Relief Act affects divorce proceedings
- ✓Address deployment-related custody and support challenges
1. The Uniformed Services Former Spouses' Protection Act (USFSPA)
The USFSPA is the federal law that governs the division of military retired pay in divorce. It allows (but does not require) state courts to treat disposable military retired pay as marital property subject to division. A former spouse can receive direct payment from the Defense Finance and Accounting Service (DFAS) if the marriage overlapped with at least 10 years of creditable military service (the 10/10 rule), though courts can order division regardless of the overlap period.
Key Points
- •USFSPA allows state courts to divide military retired pay as marital property
- •The 10/10 rule determines eligibility for direct DFAS payment, not the right to a share
- •Courts can award a portion of military retirement even if the 10/10 rule is not met
- •Only disposable retired pay (after deductions) is subject to division
2. Military Benefits After Divorce
Former military spouses may be eligible for continued benefits under the 20/20/20 rule: if the marriage lasted at least 20 years, the service member served at least 20 years, and there is at least a 20-year overlap between the marriage and service, the former spouse retains full military benefits including Tricare and commissary privileges. A 20/20/15 overlap provides one year of transitional healthcare coverage. Basic Allowance for Housing (BAH) may be affected during separation, and service members must continue to provide adequate support.
Key Points
- •The 20/20/20 rule grants full military benefits to former spouses meeting all three criteria
- •The 20/20/15 rule provides one year of transitional Tricare healthcare coverage
- •BAH at the with-dependents rate continues as long as the service member has dependents
- •The Survivor Benefit Plan (SBP) can be designated to a former spouse
3. Servicemembers Civil Relief Act (SCRA)
The SCRA protects active-duty service members from default judgments and allows them to request stays (delays) of civil proceedings, including divorce, if military service materially affects their ability to participate. A service member can request a stay of at least 90 days if deployment or military obligations prevent them from attending hearings. The court must grant the initial stay request and has discretion on subsequent requests. This can significantly delay divorce proceedings.
Key Points
- •The SCRA protects service members from default judgments during active duty
- •Service members can request at least a 90-day stay of proceedings due to military duties
- •The SCRA does not prevent divorce but can delay the process
- •Both parties should understand SCRA protections before filing
4. Deployment and Custody Considerations
Deployment creates unique custody challenges. Many states have laws protecting deployed parents from permanent custody changes based solely on deployment. Temporary custody arrangements during deployment should be established in advance through a family care plan. Some states allow deployed parents to designate a family member to exercise their custody time during deployment. Virtual visitation through video calls may be ordered to maintain the parent-child relationship during deployment.
Key Points
- •Most states prohibit permanent custody modifications based solely on deployment
- •Family care plans should establish temporary custody arrangements during deployment
- •Virtual visitation can help maintain the parent-child bond during deployment
- •Some states allow delegation of custody time to a family member during deployment
5. Jurisdiction and Filing Considerations
Military families often have connections to multiple states due to frequent relocations. Divorce can typically be filed in the state where the service member is stationed, the state of legal residence (domicile), or the state where the non-military spouse resides. Choosing the filing state is a significant strategic decision because each state's laws on property division, custody, and support differ. The legal residence state on the service member's Leave and Earnings Statement (LES) is an important factor.
Key Points
- •Military divorce can be filed in the station state, domicile state, or spouse's residence state
- •The choice of jurisdiction can significantly affect the outcome of property division and support
- •The service member's legal residence on the LES is a key jurisdictional consideration
Key Takeaways
- ★The 10/10 rule determines eligibility for direct DFAS payment of retired pay to a former spouse, but courts can divide military retirement even without meeting this threshold.
- ★The maximum amount that can be paid directly by DFAS to a former spouse is 50 percent of disposable retired pay.
- ★The Servicemembers Civil Relief Act allows a minimum 90-day stay of divorce proceedings if active-duty service prevents participation.
- ★Military child support is enforced through the service member's chain of command, and failure to pay can result in disciplinary action under the UCMJ.
- ★The Survivor Benefit Plan (SBP) can be designated to a former spouse, providing a continued annuity after the retiree's death.
Common Questions
1. What is the 10/10 rule in military divorce?
2. How does the Servicemembers Civil Relief Act affect divorce proceedings?
3. What is the 20/20/20 rule for military spouse benefits?
4. How is custody handled when a military parent is deployed?
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Common questions about this topic
Yes, a former military spouse can receive both spousal support and a share of military retired pay. These are separate legal entitlements. However, the total direct payment from DFAS for property division cannot exceed 50 percent of disposable retired pay. Alimony and child support garnishments can add an additional 15 percent for a total of 65 percent.
Yes, Department of Defense regulations and service-specific policies require service members to provide adequate financial support to dependents during separation. If a service member fails to provide support, the spouse can contact the service member's commanding officer. Failure to support dependents can result in disciplinary action under the UCMJ.
Military families can typically file in the state where the service member is stationed, the state listed as their legal residence on the LES, or the state where the non-military spouse resides. Each option has different strategic implications because state laws vary. Consulting with a military divorce attorney about jurisdiction before filing is highly recommended.