Although divorce and spousal support are generally governed by your state’s rules, military members are subject to special rules in divorce and alimony cases. Certain laws protect a spouse on active military duty from defending against a divorce complaint. Other federal laws determine how and when military pensions can be divided with an ex-spouse. If you're a servicemember or a military spouse, and you're thinking of ending your marriage, it's important to understand the specific laws governing military divorce.
Military courts can’t grant military divorces—state courts decide divorces among military members. However, the Servicemembers Civil Relief Act protects an active military member’s rights during a divorce. For example, under this Act, your divorce from a military spouse may be delayed, extra forms may be required, and the military spouse may even be entitled to his or her own military attorney.
Another federal law—the Uniformed Services Former Spouse Protection Act (USFSPA)—sets guidelines for dividing pensions and other military benefits in a divorce. Although divorces are typically a matter of state law, federal military laws set limits on how much a state can award from a military member’s pension or earnings.
Federal military laws regulate the process for dividing military pay and pensions, but states get to decide percentages and whether a divorcing spouse is even entitled to a portion of the military spouse’s pay and benefits.
Notably, the USFSPA prevents a civilian spouse from receiving more than 50 percent of the military spouse’s retirement or pension. However, states still maintain control over the division of military assets in a divorce.
A veteran’s earnings and retirement pay may be considered separate or marital property depending on your state’s laws and your own unique circumstances. Separate property refers to property that was acquired by one spouse prior to the marriage or by a gift or inheritance. Separate property belongs to the spouse who owns it and isn’t subject to division in a divorce.
Community or marital property is any property that was acquired by the spouses during the marriage and is considered jointly owned. Community or marital property will be divided equally (50/50) or equitably between spouses according to your state’s rules.
One spouse’s military pay and benefits may be deemed separate or community property depending on when the pay and benefits were acquired, the length of the marriage, the length of military service, and other relevant factors.
Categorizing an asset as joint or separate will impact how much money or property you receive in a divorce. For example, in community property states like Texas, community property will be split in half. If a court decides that a spouse’s military benefits aren’t community property, the civilian spouse could lose out on a large portion of the couple’s marital estate.
Each state has its own laws regarding alimony and spousal support. For example, a judge may consider the length of your marriage, each spouse’s earning capacity, and each spouse’s age, among other things in deciding whether an alimony award is appropriate. In other words, a spouse’s military service won’t determine whether you are entitled to alimony in your divorce. Federal military laws don’t set guidelines on alimony awards, although a veteran can’t be ordered to pay more than 50% of his or her income toward support.
Sometimes military benefits are tied into spousal support awards. Under the USFSPA, there are limits on a divorcing spouse’s right to the military member’s medical benefits. Specifically, military spouses are allowed to keep their military spouse’s medical benefits if the marriage lasted at least 20 years and the service member performed at least 20 years of military service prior to the couple’s divorce.
Even in a military divorce, most property and support issues are governed by your state’s laws. The residency rules of your state will determine where you can file for divorce. Moreover, your own unique circumstances and state’s laws will determine the amount of support you receive or pay in your divorce.
Federal laws covering military members serve to protect our country’s servicemen and women. Although in most cases, a military pension or regular military pay is subject to division in a divorce, the Defense Finance and Accounting Service (DFAS) has a protocol that must be met before a military member’s benefits can be distributed to a former spouse. Under the DFAS, a divorcing couple must obtain a court order to divide the military member’s benefits. A recipient spouse won’t receive payments directly from DFAS unless certain requirements are met.
If you have questions, it's important to speak to an attorney who is experienced in military divorce.
