Military Spousal Rights After Divorce
A divorce that involves a member of the United States Armed Forces can often be more legally complex than a marriage dissolution that occurs between a husband and wife who have no connection to the military. Among the issues that must be resolved in a military divorce are the non-service member spouse's continuing eligibility for commissary, exchange and health-care benefits. Financial considerations, such as how much, if any, of the service member's pay the spouse is eligible to receive must also be worked out.
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Definition of a Military Divorce
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A military divorce occurs when either the husband or wife is a member of the United States military. Although the laws of the state in which the couple reside govern divorces involving civilian couples, both the federal government and the state in which they file for divorce regulate divorces involving a member of military.
In a military divorce, the Uniformed Services Former Spouse Act regulates such issues as military benefits, including pay, and the division of property and other assets. State laws decide issues such as child custody arrangements, visitation and support, and spousal alimony.
Who can Help
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Due to the often complex nature of military divorce, both parties should obtain legal counsel that specializes in military law. Such lawyers will have the knowledge and expertise in the many facets of federal and state law that come into play in a military divorce.
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Filing for a Military Divorce
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Filing for a divorce from an active duty member of the United States Armed Forces can be challenging. The Service Members Civil Relief Act exempts active duty service members from participating in a divorce until 60 days after their active duty service has ended. However, divorce papers may be served to an active duty service member or a service member who is serving overseas by a military or court-appointed officer as long as the military member consents to having the papers served.
Where to File
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In a military divorce proceeding, the spouse filing for divorce has several options on where to file for divorce. The paperwork can be filed in the state where he or she has established legal residence; where he or she is currently stationed; or in the state where the military service member resides.
Benefits
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The Uniformed Services Former Spouse Protection Act (USFSPA) protects the rights of the non-military member spouse in a military divorce. The length of the marriage is the prime determining factor in what benefits the non-military member spouse will receive.
If the couple has been married at least 20 years, the non-military member is eligible to keep his or her health care, Post Exchange and commissary benefits. The non-military spouse will also be able to retain her military Identification Card. If the couple has been married at least 15 years, but not 20, the non-military spouse will be able to keep benefits with the exception of health care. A federal court will determine the benefits that a non-military member will receive if the couple has been married for fewer than 10 years.
State courts govern the amount of child support that a military member must pay in a divorce proceeding, but federal law prohibits that amount from exceeding 60 percent of the service member's pay.
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References
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