Military Divorce: Rules for Active Duty Service Members

Having a spouse in active military service can affect your divorce. Even if you mutually decided to split, active military status could affect how you need to file and your case’s timeline and outcome.

Whether you are looking to file a simple no-fault divorce or your case is more complex, our firm can help. We will walk you through your divorce in a professional and caring manner, and we’ll make sure you stay well informed.

How is divorce different for active duty service members?

The Federal Service Members Civil Relief Act of 2003 requires a person seeking a divorce to state their spouse is not a member of the U.S. armed forces. This rule prevents spouses from divorcing military members who would be unable to attend divorce proceedings.

If your spouse is a member of the military, you can pursue a divorce as long as they consent. They must also sign a defendant’s affidavit of consent.

Where to File for Divorce

If you are a military member and are deployed, you likely have a few options for jurisdiction when filing for divorce. These might include:

  • File in the state where you last resided for six months or more
  • File in the home state where you pay taxes
  • Allow your spouse to file where he or she resides in the U.S.
  • If you’re stationed in the U.S., file in the state in which you are stationed, even if you’re not a resident of that state.

Many military members have these additional options, because states frequently eliminate the residency requirement when an active duty service member wants to file for divorce.

Uniformed Services Former Spouses’ Protection Act

Because you and/or your spouse is an active member of the military, the Uniformed Services Former Spouses’ Protection Act (USFSPA) may affect how you divide your assets. The USFSPA addresses questions about former spouses’ eligibility for base privileges such as:

  • Commissary and exchange
  • Health care coverage and other benefits
  • Military retirement pay

Under the USFSPA, a former spouse does not automatically get a portion of the service member’s retirement pay, and there are specified requirements to qualify.

Getting the Right Help

Aside from a few added rules, the military divorce process is much like civilian divorce. You will need to agree on arrangements for the following:

  • Division of homes, vehicles, money, and other marital property
  • Division of credit card bills, loans, and other debt
  • Alimony, also called spousal support
  • Child custody
  • Child support

Many of the forms you complete will also have the same information. In some states, you may file for a no-fault divorce if you and your spouse have no disputes. If your opinions differ regarding child custody or dividing assets, however, an experienced divorce lawyer can mediate your dispute and help you draft a settlement agreement. After you sign, the document is legally-binding.

Contact Our Lawyers for Assistance

We can help if you or your spouse is an active service member in the United States Army, Navy, Air Force, Marines or Coast Guard. Contact Petrelli Previtera, LLC at (866) 465-5395 for professional legal advice.

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