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Military Divorce and Separation

Congressional Protections for Service Men and Woman


Question: I am on active duty and have been served with divorce papers. I am too busy to respond. What can I do?

Answer: Military personnel have some Congressionally legal protection from divorce proceedings not granted to public at large. Under the Servicemembers Civil Relief Act, 50 UCS section 521, Congress has acted to given protect the legal interests of servicemen and women from lawsuits including divorce proceedings to enable them "to devote their entire energy to the military needs of the nation."

In the discretion of the court, the legal proceeding may be stayed (delayed) for the time the service member is on active duty and for 60 days thereafter.

The Servicemembers Act also prevents the active duty serviceperson from being held in "default" in some circumstances for not responding to the divorce proceeding. If a party is in the military, the court may appoint an attorney to represent the serviceperson, but only for the default proceedings and not for the divorce action itself.

Question: Does the Soldiers and Sailors Relief Act mean that I can simply ignore the divorce papers I have been served with?

Answer: No. You will want to make sure the court is aware that you are on active duty. Furthermore, the stay for the divorce proceeding is discretionary with the court. You may have to hire an attorney to make the motion to the court to delay the hearing. Sooner or later, even if a stay is granted, you will have to deal with the divorce proceedings.

Furthermore, if a divorce between you and your spouse is inevitable, it may be in your best interest to obtain the divorce as soon as possible. For instance, the portion of your military retirement that your spouse could claim will only increase with time.

Question: I'm stationed in one state, but my legal residence is in another. I do not own property in the State I'm stationed in. If divorce is initiated in the State I'm stationed in, can the court divide my Military retired pay?

Answer: It depends. If you initiate the divorce action, then the answer is probably yes. If your spouse initiates the divorce action, you may have some federal protections. The Uniformed Services Former Spouse Protection Act, (USFSPA) spells out the conditions when a state may assume jurisdiction over a member's military retirement pay. Basically, a court may not treat the disposable retired pay of a member as community property unless the court has jurisdiction over the member by reason of his residence, other than because of military assignment, in the territorial jurisdiction of the court; his domicile in the territorial jurisdiction of the court; or his consent to the jurisdiction of the court. Consent and jurisdiction are tricky issues, and you should consult an attorney who is knowlegeable of the provisions of the USFSPA before responding to any petition.

Question: I've only been married to my spouse for nine years. The court can't divide my future retired pay, can it?

Answer: This is a common misconception. The "10 Year Rule" in the Uniformed Services Former Spouse Protection Act (USFSPA), only restricts direct payments by the Defense Finance Accounting Service (DFAS) to the former spouse. Depending on the laws of the particular state, the court may award a monetary "offset" representing a portion of your military retired pay to your former spouse, regardless of the length of marriage.

If the DFAS does not make the payments directly, the member will still be required to comply with the judgement of the court. Finally, the only portion of the retirement benefits considered community property and subject to division are those earned during marriage and while in the service.

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