Getting divorced as a military servicemember is essentially just like getting divorced as a civilian … essentially. The legal process and all applicable laws and rights remain the same. However, the process of divorce in the military can be much more complicated for a number of reasons. Here are just a few.
1. If You or Your Spouse is Active Duty
Being deployed doesn’t always mean that life stops while you are away. In fact, the distance and the lack of communication can strain a relationship, and can be especially difficult when combined with the stress of military responsibilities. If reconciliation or waiting until you or your spouse’s return is not an option, then there are several things to consider.
Filing a divorce while you or your spouse are in active combat can be complicated. One main reason for this is that you and your spouse may be in different states—even completely different countries. You may also be filing from a state where you have not lived long enough to establish residency. Because laws vary from state to state, where you file can affect how a military pension is divided.
Military personnel served with divorce papers while deployed may be able to postpone the divorce until they get back. You or your spouse can request an extension of up to 90 days before responding to the petition. The Servicemembers Civil Relief Act (SCRA) is in place to protect servicemembers from their civil obligations until they are in a better position to make decisions.
If it is the deployed person who is filing for divorce, a knowledgeable military divorce attorney can be critical in the legal process.
2. Military Retirement Pay & the 10/10 Rule
One of the things you should know about dividing up military pay is the commonly-misinterpreted 10/10 Rule. The 10/10 Rule doesn’t mean that a military servicemember and his/her spouse need to be married for 10 years before the spouse has a right to a portion of the military retirement pay, nor does it mean that that they have to be married for ten years during active service duty.
The 10/10 Rule is simply part of a law passed by the Uniformed Services Former Spouses’ Protect Act (USFSPA) which state that someone who was married to a military servicemember for at least 10 years is entitled to a portion of the military retirement pay sent directly from the Defense Finance and Accounting service (DFAS), as long as their spouse was performing credible military service for 10 years. In other words, fulfilling the requirements of the 10/10 Rule simply means that the spouse will be eligible for direct payments from the DFAS.
If you do not meet the requirements of the 10/10 rule, then it doesn’t mean you or your spouse are ineligible for a portion of the payment. It only means that your case will be reviewed as part of the divorce settlement agreement. There are different methods available for calculating the percentage of pension entitled to military ex-spouses, which will ultimately be affected by a number of factors, including the length of the marriage and the length of military service during that time.
3. Health Care and Benefits & the 20/20 Rule
While military personnel and their children’s eligibility for TRICARE does not change during a divorce, the former spouse’s eligibility may be affected. If the former spouse has not remarried, two rules come into play in determining the military ex-spouse’s eligibility:
- The 20/20/20 Rule: This rule states that the military sponsor must have had at least 20 years of credible service. The marriage should have also lasted 20 years and should overlap the 20 years of credible active or reserve service.
- The 20/20/15 Rule: This rule will come into effect if the military sponsor had 20 years of credible service and the marriage lasted 20 years, but only 15 of those years overlap. In this scenario, the military ex-spouse is entitled to a coverage lasting only up to one year from the date of the divorce/annulment.
A military ex-spouse will lose TRICARE eligibility if they re-marry or become covered by an employer-sponsored health plan. Commissary, exchange, and theater privileges are also covered under the 20/20/20 or the transitional 20/20/15 rule.
The Survivor Benefits Plan allows coverage for former spouses, with identical costs and benefits as spouse coverage. The SBP must be discussed during the divorce settlement and is not automatically granted to the military ex-spouse after the divorce.
Trust in a Top Military Divorce Attorney
There are a number of variables that come into play if you’re getting divorced in the military. Because each situation is different, a military divorce attorney who knows the law and you and your soon-to-be ex-spouse’s rights is invaluable in ensuring that your legal proceedings are on track. Visit The Firm For Men online to request an appointment or call our Virginia Beach office at 757-383-9184.