How is Military Divorce Different?
Written by AskTheLawyers.com™ on behalf of Jimmy Vaught with Vaught Law Firm LLC..
Military divorce has many similarities to standard divorce, however there are important considerations to take into account. A military spouse may be entitled to continue receiving military benefits for a set period of time after the divorce has been finalized depending on a variety of factors, such as how long the couple was married during the military spouse’s service. It is also important to note that if a servicemember is deployed during the time of the divorce, the non-military spouse may have to wait to file.
Servicemembers and their spouses have equal free access to legal assistance from military legal assistance offices. However, these attorneys cannot represent their clients in civilian court. While this legal assistance can be a great avenue for finding answers and gaining clarity, it is important to find a civilian attorney with experience handling both standard and military divorces. This can help prevent important aspects of the divorce from being overlooked.
It is unfortunately common for a couple to divorce, only to later find that the servicemember retained certain benefits the former spouse was also entitled to continue receiving but did not know to ask for in the divorce. Some benefits may differ depending on whether or not the military spouse served in the reserves. To learn more about military divorce or for help filing, reach out to a military divorce attorney.
Retirement and health insurance are two types of benefits to which a military spouse may be entitled in divorce.
Military retirement accrues throughout a servicemember’s military career; as long as the servicemember has been in the military for at least 20 years and has not yet accessed their retirement. There is a common misconception that unless a couple has been married for a certain period of time, the spouse is not entitled to retirement benefits. However, this is not the case. In most situations where the military spouse has served for at least 20 years, not in the reserves, an attorney will consider how many months the marriage lasted to decide how to divvy up the retirement benefits. In community property states such as Texas, the split is often 50/50.
Health insurance is another important benefit to which a spouse may be entitled under certain circumstances. For example, in Texas, if a spouse was married to a servicemember for 15 years of active duty service, that spouse is generally entitled to one year of post-divorce health insurance through Tricare, excluding dental and vision coverage. If the years of marriage increase to 20 or more years of marriage during active duty service, the non-military spouse may be entitled to Tricare for more than one year after divorce.
Depending on the duration of the marriage, the non-military spouse may also be eligible for medical, commissary, exchange, and theater privileges under the Morale, Welfare, and Recreation program.
In regard to child and spousal support, it is important to note that a Leave and Earnings Statement is not the same as a pay stub.
Unlike a civilian pay stub, Military Leave and Earnings Statements (LES) also contain payments for Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS). LESs may also contain payments for deployment or hazard duty pay, and often involve significant tax breaks. This means that a military spouse’s income may be calculated and considered differently than in a standard civilian divorce.
While child support is filed through the civilian court, that support is subject to enforcement by the servicemember’s command officer. In general, the military agrees that regardless of custodial status, the servicemember has a responsibility to financially provide for their family. Failure to pay child support could result in non-judicial punishments including additional duties, reduced rank, and even reduced pay.
Child custody and visitation may also be affected by military service.
Child custody and visitation often require special consideration due to an active duty military servicemember’s time spent at training, on orders, and otherwise deployed. Children of servicemembers may also receive certain commissary privileges and will generally be included in the servicemember’s military healthcare.
Figuring out where to file for military divorce can be tricky.
Unfortunately, many states do not allow you to file for divorce from out of state. However, in states like Texas, servicemembers stationed outside of the state are still allowed to file in Texas as long as there are no children involved. If children are involved in the divorce, it is important for the parents to consult with a military divorce attorney to discuss where and how to file. To learn more about military divorce or for help filing, seek out a civilian attorney with experience handling military divorces.