If you and your spouse are getting divorced, and one or both of you is a member of the U.S. military, different legal rules and procedures can apply. How will your divorce be different from the experiences you’ve heard about from your non-military friends and family? Here are six key ways military divorce and civilian divorce are not the same.
1. Residency Requirements
Civilian Divorce: State laws vary on the amount of time a couple must reside in the state in order to qualify to file for divorce there. For example, to be considered a resident of New Jersey for divorce filing purposes, the residency requirement is one year.
Military Divorce: Because military service can involve frequent moves from state-to-state, as well as temporary moves out of the United States, residency requirements for the purpose of filing for divorce are more lenient. Under current rules, a servicemember or spouse may choose to file a complaint for divorce in one of three places:
- the state where the spouse resides (i.e., New Jersey if the spouse is a legal resident),
- the state where the servicemember claims legal residence, OR
- the state where the servicemember is stationed.
2. Serving Divorce Papers
Civilian Divorce: In general, after the “plaintiff” spouse has filed the Complaint for Divorce, a process server delivers divorce papers to the “defendant” spouse at home or at work.
Military Divorce: Each base should have an official designated to facilitate the serving of legal papers — typically either the Provost Marshall or another person with responsibility for law enforcement at the base. If a military member is oversees, it may be difficult to serve him or her with divorce papers. It is possible to request service through the military authority, but the military spouse must agree to accept the service. Sending the papers via certified mail may be another possibility as long as the spouse being served is willing to receive the mail.
3. Protection from Default
Civilian Divorce: If the spouse doesn’t respond to papers, he or she will next be served a Notice of Equitable Distribution and Case Information Statement. A date is then set for a court hearing. If the spouse does not not attend the hearing, a default judgment of divorce may be awarded to the plaintiff spouse.
Military Divorce: Servicemembers are protected from default judgment if current military service or service within the previous 90 days is affecting the defendant’s ability to appear and present a defense.
4. Child Support
Civilian Divorce: In New Jersey, the courts follow formulas found in the Child Support Guidelines in deciding child support amounts. The state also oversees child support enforcement.
Military Divorce: Each branch of the military has its own policy regarding payment of temporary support in the absence of a court order. Calculating correct amounts of support depends on accurate analysis of the Leave and Earnings Statement. If necessary, the Department of Finance and Accounting Service (DFAS) will enforce state orders through wage garnishment.
5. Child Custody
Civilian Divorce: If one parent is awarded sole custody based on the other parent’s absence or illness, the absentee parent will be required to provide ample evidence to the courts as to why he or she wishes to have the plan modified.
Military Divorce: Servicemembers who are absent 30 days or more due to deployment or treatment for a service-related health condition are protected from permanent loss or change of custody during the absence, and can also take advantage of more flexible rules regarding hearings and temporary custody modifications. For specific protections of military parents in New Jersey, see: New Jersey Gives Military Parents Added Protection for Child Custody & Visitation Issues.
6. Retirement Asset Division
Civilian Divorce: State laws vary on how retirement assets are treated in divorce. In New Jersey, most retirement plans qualify as martial assets subject to the state’s equitable distribution laws. In many cases, a qualified domestic relations order (QDRO) is put in place to give the divorced spouse their share of the asset or pension plan.
Military Divorce: Distributing a military pension in divorce is different from distributing either a military thrift savings plan (TSP) or a civilian pension or retirement account. Under the “10/10 Rule,” if a couple has been married for 10 years or more and the servicemember has completed at least 10 years of creditable service during the marriage, the DFAS will pay a former spouse’s share of a pension directly to the former spouse.
Are you going through a military divorce and have questions about child support, child custody, and pension/asset distribution, and other topics including what happens to base housing and military-issued health insurance when you divorce? Our experienced attorneys can help. Please contact us to schedule your initial confidential consultation.