Divorce is a complicated issue in any family, but military families face special complications. When contemplating a divorce, it's possible for the two parties to be in separate states, which may bring up questions about which state's divorce laws need to be followed. An active duty spouse may be overseas, which can delay things. And the military has its own set of rules that can complicate things for the divorcing couple. Check out a few things that you should know if you're a military member or the spouse of a military member contemplating divorce.
Which State Should You File In?
If you and your spouse are physically separated, either voluntarily or because of military duties, you may be questioning which state you should start the divorce paperwork in. The fact is, either one of you may initiate divorce proceedings in whatever state you happen to legally reside in – so if you're living in Florida and your spouse is in California, you could start the proceedings from Florida or they could start the proceedings from California, as long as whoever files meets the residency requirements of their state.
However, you should know that under federal law, the state where the military member lives is the only state with the power to divide a military pension. The enlisted spouse can consent to allowing a different state to make that division, and if it's an amicable divorce, that might be an option for you. However, if this is a point of contention between you and your spouse, then you will have to leave the question of dividing the pension up to the court in the military spouse's state of residence, which means that it may be preferable to file the divorce in that state as well.
What About Active Duty Military Members?
If you or your spouse is currently on active duty, you should know that this can seriously delay any action on your divorce case. Military spouses on active duty can postpone divorce proceedings for their entire tour of duty, and for up to 60 days after it ends.
While this can be frustrating for the civilian spouse of a military member, federal law dictates that these stays in the process be allowed in the interest of fairness to the servicemember. They may not be able to participate in divorce proceedings if they're stationed far from home. These delays also allow the servicemember to focus on serving their country, rather than dividing their attention between their duties as a military member and a divorce case.
Is Legal Separation Different For Military Families?
A legal separation is very similar to a divorce, in that it divides property and child custody and makes provisions for child support and alimony. However, people who are legally separated are also still legally married. Spouses may be able to retain some benefits, like health insurance, during a legal separation that they do not retain in a divorce – this is a common reason for choosing a separation.
There is one significant issue for servicemembers who are legally separated from their spouses that civilians do not face – dating. A civilian may legally begin a new relationship while separated, but under military law, a servicemember who begins a relationship with a new party while legally separated from their spouse may be charged with adultery, a criminal offense under military law. While you may be able to argue that you are not committing adultery because of the legal separation, this is not a foolproof defense, and you could still face charges. It's important to keep this issue in mind if you're a military spouse considering a legal separation.
If you're a military member or the spouse of a military member who is considering divorce, it's vital to retain good legal representation. For the best legal guidance, choose a civilian divorce lawyer, such as Grenadier, Starace, Duffett & Keisler, PC, who has past experience with military family divorces.