1. The Service Members’ Civil Relief Act (SCRA)
Since 2003, the SCRA has protected deployed and active duty service members from the distractions of civil litigation, including divorce. Protection under this law lasts up to 90 days after active duty has ended.
2. Jurisdiction Options
Parties involved in a military divorce can use one of three factors to decide residency: which state the military party has legal residency, which state the non-military party has legal residency and in which state the military party is currently stationed. Because of variations between the states, the advice of an attorney is especially important in making even this early decision.
3. Child Support
Child support is determined according to need and income, as in civil divorce cases. The difference is that the income of the service-person can include his or her Basic Allowance for Housing rate. In addition, active service-persons who are delinquent in child support payments can be ordered to pay by their commanding officer.
4. The Uniformed Services Former Spouses’ Protection Act (USFSPA)
This is perhaps the most complicated aspect of military divorce. Enacted in 1982, the USFSPA was created to acknowledge that domestic support of military personnel is akin to support for the military as a whole. As a result, military spouses are entitled to 50% of retirement pay after divorce.
Under this act, military retirement pay is treated as property rather than income. In income-based rewards, the needs of one party are used to determine amount. Alimony and child support are common examples. When property is awarded, proof of need is not required. If the non-military party receiving a percentage of military pay gets remarried, they still get the same amount.
While retirement pay can be rewarded regardless of how long the marriage lasted, other benefits are connected to its duration. If the marriage lasted during 10 years of active service, the non-military party may be paid directly. Otherwise, they’re paid through the service-person. If marriages meet the 20/20/20 Rule (the service-person was married for 20 years, served for 20 years and the marriage and service overlapped for 20 years), the non-military party is entitled to further benefits.
The USFSPA provides a rough outline of retirement benefits. Because military retirement pay is not a pension, nothing is paid until the service-person retires. Neither disability nor survivor benefits are covered under this act. The actual amounts are always determined by courts.