Divorce in the military can be confusing because domestic situations are governed by a mix of federal statutes, state divorce laws and procedures, and military regulations. Depending on the length of the marriage, divorced spouses of service members may be entitled to benefits from the military.
The military’s (limited) role in your divorce
Generally, the military views divorce as a private civil matter to be addressed by a civilian court. Commanders rarely get involved in domestic situations except in limited cases, such as a claim by a dependent that he or she is being denied adequate financial support by the service member spouse. Even in such cases, a commander’s authority is often limited, absent a civilian court order.
Service members and their spouses have access to legal services at no cost through the installation legal assistance offices. In a divorce or family law matter, a service member and dependent spouse will need separate legal assistance attorneys to advise them to ensure both parties receive independent, candid and confidential advice, and to be sure there is no conflict of interest in representation. Communications between a client and a legal assistance attorney are private, confidential and covered by the attorney-client privilege-with the exception of some future crimes or frauds upon the court.
While military legal assistance attorneys may not be able to draft specific court documents or rep¬resent members or their families in court, they can provide helpful advice on a range of legal issues including divorce and child custody, income taxes, the Servicemembers Civil Relief Act and wills. Legal assistance offices also provide notary services free of charge. For military divorce or legal separation situations that require representation in civil court or involve contested issues such as child custody, spousal/child support or division of assets like retirement pay, it is recommended that you consult with a civilian attorney who is knowledgeable of the divorce laws of your particular state and has extensive experience with military-related family law.
Servicemembers Civil Relief Act protections related to divorce proceedings
The Servicemembers Civil Relief Act helps protect service members’ legal rights when called to active duty. It applies to active duty members of the regular forces, members of the National Guard when serving in an active duty status under federal orders, members of the reserve called to active duty, and members of the Armed Services, National Oceanic and Atmospheric Administration, Public Health and the Coast Guard serving on active duty in support of the armed forces.
In regards to divorce proceedings, service members can obtain a “stay” or postponement of a civil court or administrative proceedings if they can show their military service prevents them from either asserting or protecting a legal right such as an upcoming deployment.
Specifically, the courts will look to whether military service materially affected the service member’s ability to take or defend an action in court. If the service member submits a written communication to the court showing: (1) how military requirements materially affect the ability to appear, (2) the date when the service member will be available to appear and (3) communication from the commanding officer stating that duty prevents appearance and leave is not authorized, the court must grant a stay of at least 90 days. Since some state courts have strict requirements of what specific information must be contained in this notice in order to grant a stay, service members should promptly consult with a legal assistance attorney if they intend to make such a request.
The Servicemembers Civil Relief Act also provides certain protections for members regarding default judgments for failure to respond to a lawsuit or failure to appear at trial. Before a court can enter a default judgment against a military member, the person suing the member must provide the court with an affidavit stating the defendant is not in the military. If the defendant is in the military, the court will appoint an attorney to represent the defendant’s interests (usually by seeking a delay of proceedings). If a default judgment is entered against a service member, the judgment may be reopened if the member makes an application within 90 days after leaving active duty, shows he/she was prejudiced and shows he/she had a legal defense.
Uniformed Services Former Spouse Protection Act benefits related to divorce proceedings
The Uniformed Services Former Spouse Protection Act is a federal law that provides certain benefits to former spouses of military members. The benefits may affect receipt of retirement pay and medical care, as well as the use of the exchanges and commissaries. For detailed information about this act and how it may impact your divorce proceedings, please read the article Uniformed Services Former Spouse Protection Act for Divorced Spouses in the Military.
Eligibility for military benefits
Whether you are entitled to commissary, exchange or medical benefits depends on the length of time you were married, the length of time your spouse served in the military and the number of years your marriage overlapped with his or her military service. An un-remarried former spouse receives medical, commissary, exchange and theater privileges under the Morale, Welfare and Recreation Program if:
- He or she was married to the military member for at least 20 years at the time of the divorce, dissolution or annulment.
- The military member has performed at least 20 years of service that is creditable in determining eligibility for retired pay (the member does not have to actually be retired from active duty).
- The former spouse was married to the member during at least 20 years of the member’s retirement-creditable service.
20/20/20 former spouse: As indicated above, if you were married for at least 20 years, your former spouse performed at least 20 years of service creditable for retired pay and there was at least a 20-year overlap of the marriage and the military service, you are entitled to full commissary, exchange and health care benefits after the divorce.
20/20/15 former spouse: If you were married for at least 20 years, your former spouse performed at least 20 years of service creditable for retired pay and there was at least a 15-year overlap of the marriage and the military service (but less than a 20-year overlap), you are entitled to full commissary, exchange and health care benefits for one year from the date of the divorce, dissolution or annulment. After this transition year of health coverage, you may purchase a Department of Defense-negotiated conversion health policy.
Divorce for former spouses who are neither 20/20/20 nor 20/20/15 former spouses
If your marriage was less than 20 years, your spouse served less than 20 years or your marriage overlapped for less than 15 years, you will not be eligible to continue using the commissaries and exchanges once your divorce, dissolution or annulment is finalized. During the time prior to its finalization, you can continue to receive your commissary, exchange and health care benefits. Here are some additional issues for you to consider:
- Base housing. The service member does not have the authority to evict you; only the installation commander has that authority. By law, military family housing can only be occupied by service members who reside with their family members (with some exceptions). Each of the branches of service has regulations which require the family housing unit to be vacated usually within 30 days if the service member stops residing there, or if there are no family members residing there. As a result, if you are separating from your spouse and you are not in the military, you and your family must vacate military family housing.
- Health care benefits. If you are neither a 20/20/20 nor a 20/20/15 former spouse, you will not be entitled to any military health benefits after your divorce, dissolution or annulment is final, but you can receive health care coverage through the DoD Continued Health Care Benefit Program, a premium-based temporary health care coverage program, for 36 months of coverage until alternative coverage can be obtained.
- Garnishment of pay. If your spouse is still serving in the military, you may be able to receive alimony and/or child support payments. Each of the services has policies requiring service members to support family members upon separation in the absence of an agreement or court order. These policies are designed to be temporary measures, and with a court order, you can ensure that you are legally entitled to these payments.
The impact of a divorce on children’s eligibility for medical benefits through TRICARE
When there is a divorce, the service member must update the information in the Defense Enrollment Eligibility Reporting System along with a copy of the divorce decree. After this information is updated, spouses are no longer considered dependents and lose their eligibility to continue receiving health care benefits through TRICARE.
Biological and adopted children of the service member remain eligible for TRICARE up to age 21 (or age 23 if enrolled in college) as long as the child remains a dependent child of the service member. Stepchildren who were not adopted by the service member lose their TRICARE eligibility once DEERS is updated. Stepchildren may be eligible to purchase coverage under the Continued Health Care Benefit Program.
When both of the divorced parents are service members, you must decide together which parent should be the sponsor of the child’s benefits. If an agreement cannot be reached, visit an ID card office for additional guidance on how to resolve the issue. If custody of your child is shared, and you and your former service member spouse live in different TRICARE regions, you should decide carefully which health plan option your child(ren) should use based on the amount of time they stay with each parent. If you need further assistance, contact your regional contractor.
Divorce in overseas locations
While service members and their spouses can file for divorce through overseas jurisdictions, the courts of the United States may or may not recognize the ruling. Generally, if either you or your spouse is domiciled in the jurisdiction that grants the divorce, and there is proper service and notice, then that court (foreign or domestic) will have the power to grant the divorce and the U.S. courts will recognize it.
You can avoid this potential issue by filing for divorce in a state, rather than through a foreign country. Military divorce laws allow service members and their spouses to file for divorce in either the state where the service member is currently stationed, the state where the service member claims legal residency or the state where the non-military spouse resides. When determining in which state to file, it is important to remember that the Uniformed Services Former Spouse Protection Act grants the power to divide the military pension in a divorce to the state where the service member claims legal residency. One caveat is if you own property, such as a house, in a foreign country. You may wish to consult your military legal assistance attorney or your civilian lawyer in such situations.
If you are living overseas when your marriage is terminated by divorce or annulment, you and your children (as well as your possessions) may be able to return to the United States (or your country of origin if you are foreign nationals) at the government’s expense. Service members permanently stationed outside the United States may request Early Return of Dependents, authorizing the return of command-sponsored family members and their household goods before the service member’s tour ends.