How military divorce is different from civilian divorce

 Posted on September 12, 2016 in Military Divorce

Divorce involves a lot more than ending a marriage and the emotions that come along with the significant life change.

There are also numerous legal issues that need to be considered, including dividing marital property, addressing child custody issues if children are involved, and determining if alimony applies.

When one or both of the spouses is an active or retired member of the military, the issues only get more complex. One reason for this is because both state and federal laws apply, unlike in civilian divorce, which is governed by state law.

Retirement benefits, medical benefits (including TRICARE), child custody and visitation during deployments, and the implications of the Servicemembers Civil Relief Act (SCRA) all must be carefully considered with the help of a family law attorney who has experience handling military divorce.

Here are some of the special rules and laws that apply:

Added protections for active duty servicemen and women

There is a federal law in place (Soldiers and Sailors Civil Relief Act, 50 UCS section 521) that protects active duty military members from being held in "default" for not responding to divorce petitions while on duty. This essentially protects servicemembers from being divorced while away at war.

Additionally, an active duty servicemember must be served, in person, with a divorce complaint in order for a Texas court to have jurisdiction over the case. However, if the divorce case is uncontested, then the active duty servicemember may sign an affidavit waiving this requirement.

State and federal laws determine property division

In a military divorce, marital property is divided according to Texas property division laws as well as the federal Uniformed Services Former Spouses' Protection Act (USFSPA), which determines how military retirement benefits should be split. However, the marriage must have been 10 years or longer for this to apply.

Special considerations for spouses of military members

Texas law requires that child support and spousal support/alimony cannot exceed 60 percent of a military member's pay and allowances. This can present a difficult problem, especially for stay-at-home spouses in securing child support, that requires the attention of an experienced attorney.

Child custody arrangements when deployment is an issue

Deployment and relocation cannot be held against a servicemember parent in a child custody proceeding. In 2009, the Texas Legislature passed laws that allow a parent who is deployed to seek a temporary modification of a child custody order that is to remain in effect during the period of deployment.

As you can see, there are many special circumstances that apply to military divorce and child custody proceedings, which is why it's important to work with a lawyer who has experience identifying and handling these issues.