military couple discussing divorce

Special Considerations in Military Divorces

By Bob Matteucci

Active duty or retired military personnel have to go through the same civilian court process to obtain a divorce as people who are not in the military, but there are special considerations in these divorces that make them different from a traditional divorce. For instance, where a spouse is stationed can impact the timing and location of the court process. Also, the military has rules about financial support, pensions, and benefits. 

If you or your spouse are active-duty military or a veteran and are contemplating or going through a divorce, a New Mexico military divorce attorney who has handled military divorces can help you deal with these issues.

Where to File the Divorce Case

The Servicemembers Civil Relief Act protects members of the military from specific legal and financial pressures when on active service. The purpose of this Act is to allow military members to focus on their service duties of protecting our country without the distraction of getting sued by someone back in their home state or losing their home to foreclosure. 

If a service member on active duty wants to get divorced, they can consent to the jurisdiction of a court for purposes of the dissolution proceeding. In addition, if the service member cannot attend because of military duty, the Act allows a postponement of the case and provides some protection against default judgments.

You might have multiple options for filing a divorce case, depending on your situation. Talk with a lawyer about your options for filing or participating in a divorce while on active duty or postponement alternatives for lawsuits.

Eligibility Rules for Military Benefits, Direct Retirement Payments, and Support

The Uniformed Services Former Spouse Protection Act (USFSPA) addresses issues such as health care benefits, military retirement pay, access to the commissary, and other concerns that can affect a former spouse of a military member. The Act also deals with child support and spousal support.

  • If a civilian divorces a service member, you do not automatically receive a portion of your former spouse’s military retirement pay. The military will not distribute any of your former spouse’s retired pay to you unless the civil divorce court awarded you a specific amount or percentage of that asset. 
  • You can enforce spousal support, also called alimony or maintenance, and child support through the USFSPA. As with retired pay, the Act can only enforce court-ordered terms for these items. 

Some benefits require that the parties were married for a certain number of years that overlap with the service member’s period of service and that the military member served a certain number of years in the armed forces. For example, a “20/20/20 spouse” was married for at least 20 years to a service member who served at least 20 years of creditable service, and that at least 20 years of the marriage overlapped the period of service. In this situation, the former spouse typically gets access to the full commissary, exchange, and health care benefits. 

The special considerations of a military divorce can be overwhelming for both a service member and a civilian spouse. A New Mexico family law attorney, like Bob Matteucci, can sit down with you and discuss these considerations in detail and help explain your options. Get in touch with Bob today for an initial consultation.

About the Author
Bob Matteucci is a board certified family law specialist, with a statewide practice in the area of divorce and family law.