Free case evaluation

Military Divorce: Rules of Active Duty Members

Posted on October 10th, 2018

Divorces can happen to couples in any situation. When the divorce involves a couple with an active duty member, the couple should take into consideration the fact that different filing procedures may apply. The nonmilitary spouse can also experience lifestyle adjustments and temporary benefits after divorce.

Service members Civil Relief Act

A divorce proceeding that occurs while one spouse is on active duty may necessitate the military spouse appearing in civil court. However, the requirements of military service may prevent that spouse from being present in court. The Service members Civil Relief Act provides some protections for these members, allowing for a postponement of civil court, so long as active duty is the reason the military spouse is unable to attend. The spouse also has protections from default judgments for inability to appear at a trial.

The Uniformed Services Former Spouse Protection Act

Former spouses of military members can receive certain benefits under the Uniformed Services Former Spouse Protection Act if the spouse meets certain requirements. The nonmilitary spouse can receive medical, exchange, commissary, and theater privileges so long as the marriage lasted for at least twenty years, the military spouse has performed at least twenty years of service creditable for retired pay, and the marriage overlapped at least twenty of those service years.

For marriages that lasted twenty years, the military member has performed at least 20 years of creditable service, and the marriage overlapped at least fifteen of those service years, the nonmilitary spouse may still receive TRICARE medical coverage. Both types of privileges only exist so long as the nonmilitary spouse remains unmarried.

Other Effects of Divorce on Military Benefits

Aside from protections under the Uniformed Services Former Spouse Protection Act, nonmilitary spouses can still receive TRICARE benefits until the divorce is final. For spouses who will lose their TRICARE benefits after the divorce, they can purchase up to 36 months of temporary health care coverage through the Department of Defense Continued Health Care Benefit program. The benefits can also extend to biological and adopted children of the military spouse for up to age 21, or age 23 if enrolled in college.

Nonmilitary spouses lose installation family housing within 30 days of the service member moving out. If the nonmilitary spouse needs to return home from an overseas duty station, the military may pay any related moving expenses. In-state moving costs may be part of the terms of the divorce settlement.

If the separation does not involve a court order for spousal and child support, military service policies require the military spouse to provide support for family members. These policies are temporary, allowing time to establish a permanent court order for support.

Overseas Divorces

When military service has brought spouses overseas, they may consider filing for divorce in their current place of residence. However, these procedures can be more complex and cause difficulties, as not all U.S. courts recognize a divorce filed while overseas. It’s essential to have legal help when the couple owns property overseas. The government can fund transport of family members and their property before the military spouse’s tour of duty ends.

When filing for a divorce that involves an active duty member in the U.S., it’s possible to file in the state where:

  • The military spouse is currently serving
  • The nonmilitary spouse resides
  • The military spouse claims legal residence

As the state in which you file your divorce may impact divisions of marital property, spousal support, and child support, you should consider your options if you have multiple states available to file in.

Divorces with active duty military spouses involve different procedures and regulations than a civilian divorce. For help with these proceedings, military installation legal assistance offices can offer free military legal assistance throughout the divorce.