09 Apr The Financial Guide to Help You Through a Military Divorce
Divorce is hard enough, but a military divorce is even more challenging. Just like getting married in the military, a military divorce has some red tape. Unlike a civilian divorce, there are factors like the Servicemembers Civil Relief Act, military pension, and base privileges to iron out. Divorce—civilian or not—can be lengthy, distressing, and expensive.
A military divorce is the divorce of a service member and their spouse. State and local laws set the process for divorces, but federal law limits how much of a service member’s earnings and pension can be awarded in divorce proceedings.
For those who have gone through it, divorce is frequently described as the second most traumatic thing a person can go through. Second only to death! Knowing how military divorce works and what protections you’re entitled to can help make the process a little less stressful.
Table of Contents
The Military Divorce Process
A military divorce is the same as a civilian divorce. What makes a military divorce unique is the entitlements available to military personnel and the care taken in dividing them. Here are the general steps for military divorces.
The first step in the process is to contact an attorney. You can get free general advice at your installation legal office to start the process. But it’s best to find a civilian attorney experienced in handling military divorces. You don’t want to be the person where the attorney gains their experience. Find someone with an established track record of handling military divorces.
After securing your attorney, the first thing that will happen is the drafting of the complaint. The complaint expresses why you’re seeking a divorce and outlines how the petitioning spouse would like to handle the issues.
Once the complaint is drafted, it will be filed with the court. The papers will be served to the spouse. They’ll be required to respond within a timeframe outlined in the document unless the service member qualifies for legal protections under the Servicemembers Civil Relief Act.
The served spouse will respond to the request stating whether they agree with all the petition parts (uncontested). If they don’t respond, the court will assume the spouse agrees. If the spouse doesn’t agree with any part of the complaint, the divorce will be considered a contested divorce.
Next, the couple will submit the necessary documentation to determine how assets, alimony, and child support should be treated.
The next step may be mediation. Many states require mediation, but even if you’re filing in a state that doesn’t require mediation if any part of the divorce is contested, mediation may be a cost-effective way to reach an agreement without going to trial. Mediation is the process of working with a neutral third party to facilitate an understanding of the divorce components.
If you can come to an agreement through mediation, the judge can issue a divorce decree, but if you cannot agree, then the next stage is a divorce trial. The judge will decide the terms of the settlement, and then the divorce can be granted.
The Servicemembers Civil Relief Act and Divorce
The SCRA provides protections to active-duty service members in the divorce process. Two primary protections under the SCRA are:
- Protections allow for the postponement of a civil court or administrative proceeding if the service member proves their attendance isn’t possible due to military service.
- The SCRA protects against default judgments.
Related: The Servicemembers Civil Relief Act
Military Spouse Entitlements
There are certain entitlements the non-service member spouse is eligible for when it comes to dissolving a marriage. Ultimately, as in a civilian divorce, almost everything in a divorce is negotiable, no matter how long the marriage, even if less than a year. Some entitlements are not the service member’s to give, and those include insurance and base privileges. Big money and long-term benefits are on the line, so there are rules and protections that determine some of the entitlements.
Uniformed Services Former Spouses’ Protection Act (USFSPA)
The USFSPA is a law that gives states the rights to distribute military retirement pay to a former spouse in a divorce. It also provides a method for enforcing those payments by the Department of Defense (DoD).
To be clear, the USFSPA does not automatically give former spouses monthly benefits of retirement pay, TRICARE, or base privileges. The amount of child support, alimony, and benefits are determined in divorce proceedings in the state where you’re filing your divorce. Also, specific requirements must be met to qualify for those benefits. They are laid out in the 20/20/20, 20/20/15, and 20/20/10 Rules.
The 20/20/20 Rule
There are many coveted entitlements that non-service member spouses want access to, and the 20/20/20 Rule turns gray areas into black and white.
For a non-serving spouse to have access to TRICARE, the commissary, and exchange for the remainder of their life (assuming they do not remarry), ALL of the requirements must be met:
- Married for at least 20 years.
- The spouse must have served in the military for 20 years of service, creditable for retirement pay.
- 20 Years of marriage must overlap with 20 years of military service.
The 20/20/20 Rule will not guarantee any part of the pension. Any division of the retirement pension must be agreed to or decided by a judge.
The 20/20/15 Rule
When your marriage does meet the 20-year overlap with military service, you may still keep TRICARE eligibility, albeit temporarily. If you were:
- Married for at least 20 years.
- The spouse must have served in the military for 20 years of service, creditable for retirement pay.
- 15 Years of marriage must overlap with the 20 years of military service.
TRICARE coverage will be extended if the above conditions are met for one year from the divorce date for the non-service member spouse. Under the 20/20/15 Rule, you do not keep commissary or exchange privileges.
The 10/10 Rule
This Rule is not about any entitlements, but it establishes who will pay the former, non-military spouse, Defense Finance and Accounting Service (DFAS), or the ex-spouse. The following must occur to receive a portion of the service member’s retirement payment from DFAS:
- Married for at least ten years.
- 10 Years of marriage must overlap with ten years of military service.
This rule is often misunderstood. It’s a misnomer that a former spouse will receive 50% of a service member’s military pension at ten years. That is a possibility, but it would have to be agreed upon between spouses, or a judge would have to rule on it.
The 10/10 Rule dictates who will make the payment. If the divorce is a contentious one, the non-military spouse will take comfort in knowing that the money won’t be coming from the ex-spouse. The 10/10 Rule only applies to military retirement income.
Military Divorce and Kids
On average, divorces between couples with children take longer and cost more. Arranging for children is an emotionally charged area, from agreeing on visitation frequency and holiday sharing to who will claim the child for tax purposes, and much more. Consult an attorney when children are involved!
Alimony And Child Support
In a divorce, both parties agree upon alimony (spousal support), or a judge will decide if the parties cannot reach an agreement. Child support is more complicated and varies by state. Each state has its child support formula that examines the household’s total income and the number of children.
That number is aggregated against the income of each spouse. If a spouse is a stay-at-home parent, then the calculation will be based solely on the wage earner’s income (100%/0%).
If both parents work and earn the same amount (for simplicity), each parent will contribute 50% of the amount of child support derived from the calculation. Child support intends to help the child(ren) maintain the same standard of living as they did when the parents were living under the same roof.
TRICARE For Children
When a military couple divorces, the service member’s biological and adopted children can keep their TRICARE eligibility even if the non-military parent cannot. Children who are unmarried, under the age of 21 (23 if in college), and are not on active duty are eligible. At 21 (or 23 if in college), you may extend coverage by purchasing TRICARE Young Adult until 26.
Military Divorce Questions and Answers
There are a lot of questions when it comes to divorce in general, let alone a military one. Here are some of the frequently asked questions on the military big “D” and their answers.
Is A Divorced Spouse Entitled To VA Disability?
No. Federal law prohibits states from including Veterans Affairs (VA) Disability as a divisible asset in a divorce. Though, it is included as income for alimony and child support purposes.
How Is The TSP Treated In A Divorce?
The Thrift Savings Plan (TSP) and any other retirement accounts may be divided in a divorce settlement. I can’t emphasize it enough, everything is negotiable, and if you can’t reach an agreement, the judge can decide. You may choose to offset dividing the TSP if you consent to split another asset. Or, if you file in a community property state (more on this below), you may have to divide the retirement assets.
In What State Do I File?
Service members have more options of where to file for divorce than their civilian counterparts. You can file where you’re currently residing (assuming you meet the residency requirement and both spouses live in the same state). You can also file in the service member’s home of record or where the non-service member spouse resides. To decide which is the best option for you, here are some questions to consider.
Do I want a separation or waiting periods, or do I want a quick divorce?
Some states have required waiting periods before they’ll distribute divorce decrees. Others have mandatory separation periods before you can file for divorce. While in Utah, you can get divorced in 30 days.
Do I want a fault or no-fault divorce?
A fault divorce is where one party is to blame for the dissolution of the marriage. A no-fault divorce is where neither party is responsible. Though not all states have at-fault divorces any longer, some still do and can influence the divorce settlement and the waiting period mentioned above.
How does the state handle the military pension?
Different states will treat this asset differently. Puerto Rico is the only state that won’t divide military retirement in a divorce.
Is the state a community property or a common-law state?
A community property state will divide all property acquired by one or both partners while living in a community property state equally. A common-law state will recognize that one spouse’s assets are the property of that spouse, even if acquired during the marriage. There are nine community property states:
- New Mexico
- Alaska (opt-in)
Are you looking to tie the knot soon after the finalization of the divorce?
Some states, such as Nebraska and Wisconsin, place restrictions on the ability to remarry anywhere in the world for up to six months.
Will you be available to attend court hearings and afford the travel if you file in a state other than where you live?
You may have to appear in person several times. Consider this when choosing the state where you file for divorce.
Every state handles divorce differently. If you have several states from which you can choose, I strongly encourage consulting an attorney.
How is divorce overseas handled?
Maybe you’re stationed OCONUS. Can you still get divorced? Yes, but the divorce granted in another country may not be recognized in CONUS. As mentioned above, you still have options to file in the States, and based on the expense, it makes sense to make sure you get it right the first time. If the spouses are physically separated, the Service Member’s Civil Relief Act (SCRA) can delay the process by postponing court appearances if the service member cannot appear due to duty requirements.
Who Will Help Me With My Divorce?
When it comes to getting assistance with your divorce, you have a few options. Each has its own factors to consider.
Legal Service/Judge Advocate General (JAG)
Legal Services, A.K.A JAG can be a beneficial resource for someone going through a divorce. They can assist by reviewing and revising documents, drafting letters, and offering legal counsel on many topics, offering mediation and notary services. They also provide lists of local attorneys that can help. However, a JAG attorney will not represent you in civilian court. All divorces will go through the civilian courts.
Another important thing to remember about JAG is, they will only represent one party in the marriage. Basically, it becomes the first one to get to the JAG office is the spouse that gets to use the service. But another legal office may assist the other spouse. Say, for example, you live in the Colorado Springs area, and one spouse utilizes Ft. Carson’s JAG; the other spouse could use Peterson AFB’s legal aid office.
Military Divorce Lawyer
Obtaining a civilian attorney to handle your divorce is the best option for most couples. You wouldn’t operate on your own foot, would you? You would go to a specialist. Find an attorney who specializes in military divorces, especially if you anticipate a contested divorce at any point during the process (think child support and visitation). Divorce attorneys are not cheap. According to research done by Lawyers.com on The Cost and Duration of Divorce, the average hourly rate is $270/hour, 67% of respondents hired lawyers, and the typical total costs were $7,500.
Maybe you and your spouse are amicable towards one another and have decided to “consciously uncouple.” Or you don’t have kids or many assets, and wonder if there are less expensive options? Yes. There are. In the case where you’re both on the same page about going your separate ways, you can do a “DITY Divorce” or a do-it-yourself divorce.
There are plenty of online resources to facilitate the divorce process. These are significantly less expensive than hiring a divorce attorney, and you may still have the option to ask questions to an actual attorney (or go to your local JAG office). Depending on the service you use, you can get divorced for less than $1,000.
DITY Divorce Resources
What happens in a dual military divorce?
A dual military divorce is when married active-duty service members divorce. In that situation, it works mostly the same as a service member and military spouse divorcing. The only difference would be that benefits like military retirement, TRICARE, and exchange and commissary privileges will most likely not be a factor since both individuals already have those benefits and pay.
Can I date other people once I’m separated?
If you’re the service member, that’s a big fat NO! Until you have a divorce decree you’re still legally married. Under the Uniformed Code of Military Justice (UCMJ) adultery is a punishable crime. You can claim you’re legally separated but that might not hold up so you may want to hold off on dating until the divorce is official.
Do I Need A Military Protective Order (MPO)?
First off, if you or your kids are in danger, you should immediately call military or local law enforcement. Let them help you. Unfortunately, not all marriages and divorces are on friendly terms. If you’re afraid or are being verbally or physically abused, then at the very least, you need help. And in some cases, you may need a restraining order
The divorce process typically exacerbates situations that are already tense. Protecting yourself and your children before, during, and after the divorce process is paramount. If you live on a military installation, you may file a Military Protective Order, which is enforceable only on the installation. If you live off-base, then you would want to get a civilian Protective Order.
Each branch has its own Family Advocacy Program (FAP) or equivalent program. If you need to file an MPO, you may contact the local Military Police office or FAP. The MPO will generally be short-term while the FAP representative investigates and can be extended based on the findings’ outcome.
Military OneSource Installation Services Locator
How to Get Financially Prepared for a Divorce
Divorce can have major financial impacts. In many cases, couples cannot afford to get divorced. Although the increase of online DITY divorce resources has helped reduce the financial burden of divorce. Whether you do it yourself or hire an attorney, divorce is something you should get your money in order for. Here are some tips to financially prepare for a military divorce.
Open Your Own Checking Account
If you don’t already have a checking account solely in your name, then get one opened ASAP. As well as your own savings account. Depending on separation agreements and the divorce you may need to continue to deposit part or all of your income into a joint account but have your own account ready for when you’re able to deposit your income in your account.
Get a Copy of Your Credit Report
If divorce is on the table, the first thing you should do is get a free copy of your credit report. Understanding what debt is in your name and the overall debt in your marriage is important in the divorce negotiations and how much debt you have.
You can get a free copy of your credit report at annualcreditreport.com. Once you have it, review it and contact the credit bureaus if there are any errors. Get those things handled before you get into the divorce.
Get Access to Important Information
Often in marriage, one person manages the money. If you aren’t that spouse, you need to access important information like login information and passwords to accounts. You also want to make sure you have copies of your marriage license, birth certificates, and medical records. You’ll also want to find out your current bills and expenses. And of those bills that are in your name like utilities and insurance.
Create a New Budget
Your finances are going to look different before and after the divorce. Creating a budget for how your finances will look after the divorce will help prepare. You’re most likely going to have reduced income, and you could have more or new expenses than you did before. Get a clear picture of the money you will have coming in and going out post-divorce.
Know that you don’t have to do it alone. Talk to a financial counselor or coach on your installation or from Military OneSource. Financial professionals are a neutral third party that can help financially prepare you and your budget for a divorce.
Related: How to Get Free Financial Help
If you and your spouse are on the same auto policy, one of you needs to get a new policy. If your name is not first on your insurance, you’re the one that needs to get a new policy. When you move out of your house, you need to get your car insurance update immediately to make sure there are no issues with your coverage.
Don’t forget to update your beneficiaries on any life insurance like the Servicemembers Group Life Insurance. It happens more than you know where a service member was killed in action, and their SGLI went to their ex-spouse. Ensure all your beneficiaries reflect the person or persons you want to receive the benefit if you die.
Save Money in a Divorce
Save as much money as you can during and after a divorce. Divorce is not the time for big expenditures. Instead, be conservative with your money. Expenses like attorney fees, moving costs, and adjustments to your income and expenses can make budgeting through a divorce erratic. Having money set aside can help in months your expenses are higher than expected.
Related: How to Get Yourself Out of Debt
Alternatives to Divorce
You may not be to the point you’re ready to divorce, but you know you need reinforcements. The good news is, there’s help you can get. There has been a massive initiative by the Department of Defence to help families stay intact, from Chaplain-lead marriage retreats to the easy access to Military Family and Life Counselors (MFLC) and Military OneSource counselors.
Some factors can be unique to married life in the military, like coping with deployments, moving, and employment issues. Also, many military couples are dealing with forces beyond their control, like PTSD, that can negatively impact their marriage. Here are resources to help with marriage challenges.
Military Family and Life Counselors
Military Family and Life Counselors are doctorate and master’s level certified professionals. They provide one-on-one counseling on many life and military challenges like deployments, communication, and resolving conflicts. You can contact your installation Military and Family Support Center to find an MFLC.
Military OneSource (MOS)
MOS provides non-medical counseling for things like anger management, marriage problems, parenting challenges, and readjusting after deployments.
If you’re having issues in your marriage over money, you can contact your installation financial services office or any of the Aid Societies to get help with things like food, debt, and money management. You can also contact MOS to get financial help.
Branch Marriage Resources
Your installation Chaplain’s Office or family readiness offices have resources and programs to help with military life and marriage. Often they offer marriage retreats and skill building.
- Air Force – Marriage Care (contact your Airman & Family Readiness office)
- Army – Strong Bonds
- Marine Corps – Prevention and Relationship Enhancement Program (PREP)
- Navy – Credo
- Coast Guard – SUPRT Program
Alcohol and Substance Abuse Assistance
- Alcoholic Anonymous – Help for those with a drinking problem.
- Al-Anon – Provides help for family members of alcoholics.
- Substance Abuse and Mental Health – they provide 24/7 mental and substance abuse information. As well as referrals to resources.
- Department of Veterans Affairs (VA) – The VA provides alcohol and substance abuse resources for veterans. They also provide marriage and family counseling.
- Air Force Alcohol and Drug Abuse Prevention and Treatment Program (ADAPT)
- Army Substance Abuse Program (ASA)
- Navy Substance Abuse and Rehabilitation Program (SARP)
- Marine Substance Abuse Program
Here’s The Bottom Line
Military divorce is similar to civilian divorces, but the protections and rules for benefits and pay make them different. But either way, divorce isn’t fun, and it requires planning and preparation. Doing both can help reduce the expenses and stress that go along with the process of divorce.
If you want to “kickstart” your finances in the military, you can get access to my free Financial Kickstart Kit here.
Featured image by Lance Cpl. Larisa Chavez