Five Tips For Those Facing A Divorce In The Military

According to information supplied by the U.S. Department of Defense, there are currently some 1.3 million active duty military and more than 800,000 reserve forces defending our nation’s freedom. Of the 50 states, only six have more active duty and reserve members stationed within their territorial boundaries than Washington State. Indeed, as of April 2016, 65,731 members of the armed forces were stationed within the Evergreen State.

One surprising statistic: In spite of the pressures and forced separations that U.S. military personnel and their families must endure, military divorces are slightly less prevalent than divorce among the general population. While every divorce – military or otherwise – has unique issues and concerns, those who serve in the military – and their spouses – have special issues as they contemplate the dissolution of their marriage. Here are five tips to keep in mind.

Tip No. 1: Choosing the State to File the Divorce Can Be Tricky

Generally speaking, a divorce or dissolution action can be filed in the state where either the husband or the wife resides. In most cases, the spouse who initiates the divorce chooses his or her state of residence. However, the other spouse must have resided in that state at some point. Another important factor is where the children if any, reside. Ordinarily, the state in which the divorce is filed uses its own laws to determine the division of assets, such as pensions. Bear in mind, however, that federal law, the Uniformed Services Former Spouses’ Protection Act (USFSPA), also governs the division of military pensions. Under USFSPA, the state where the military member resides controls the division of the military pension in a divorce, even if the divorce is filed elsewhere. It should be noted that the military member can consent to the court’s division of the pension.

Tip No. 2: Military Attorneys Can Be Helpful, But They Cannot Truly Represent Either Party

Each military branch has legal assistance attorneys who are located on most military bases. While these attorneys can be helpful, they cannot formally represent either party in the divorce proceeding. In general, the spouse of a service member has the same right to assistance by the legal assistance military attorney. In many cases, both spouses will find it advantageous to hire their own attorney.

Tip No. 3: Special Allowance in Filing Responses Made for Service Member

As with all civil actions, a divorce proceeding ordinarily begins with the filing of a petition by one spouse, and the service of that petition (and sometimes additional papers) upon the other. Normally, the spouse who has been served has a specified amount of time to respond. Once that response is filed (or the time for filing the response expires), the court may consider the case. A special federal law – the Servicemembers Civil Relief Act (SCRA) – provides, however, that an active duty service member may request a stay of the divorce if his or her duties prevent the member from making an adequate response. The initial stay is usually for 90 days, but the court can extend it.

Tip No. 4: The Non-Military Spouse Should Secure Health Insurance Coverage

In most cases, the non-military spouse has two options when it comes to securing health coverage following the divorce:

  1. If the parties have been married for at least 20 years during the service member’s active service, the non-military spouse is entitled to no-cost coverage under TRICARE. Generally referred to as the 20/20/20 rule (20 years of marriage, 20 years of service, and 20 years of overlap), spouses should “do the math” before filing for the divorce. If the 20/20/20 rule has almost been reached, the parties may want to wait until the 20/20/20 rule is met.
  2. If the former non-military spouse is not TRICARE eligible, he or she can secure coverage through the Continued Health Care Benefit Program (CHCBP). While there are conditions that must be met, the non-military spouse can secure up to 36 months of coverage under the CHCBP.

Tip No. 5: Division of Military Pensions is Complicated; Don’t Go Down This Path Alone

Misinformation abounds when it comes to the issues related to military pensions. One commonly held misunderstanding is that a spouse must be married to a service member for at least ten years in order to qualify for a division of the pension. That isn’t so. As noted in Tip No. 1, the USFSPA has special provisions that must be considered. But the residential state of the service member generally has the power to make an equitable division under state law. The computations can be complicated and it usually makes sense to retain an experienced divorce attorney to help you maneuver through the legal minefields.

Skilled, Experienced Legal Counsel is a Must

If you or your spouse is a military service member and you are contemplating a divorce, you owe it to yourself to retain skilled legal counsel. Bolan Law Group. has more than 30 years of combined experience providing quality legal services to individuals throughout the Pacific Northwest. If there’s a simple solution, that’s our first choice. We work closely with you to resolve matters quickly and economically. Contact us on the web, or call our office at (253) 470-2356.

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