Military divorce raises unique challenges. If you’re filing for divorce when one or both parties is in the military, you and your former partner will likely need to consider some of the typical divorce challenges couples face, like dividing assets, creating a parenting plan, and setting child support, while also possibly changing your retirement plan.
With a military divorce, you may also face additional challenges. If you and your spouse are currently living overseas, you may have a choice of jurisdiction when it comes to filing for divorce. If your spouse is currently deployed and you file for divorce, your court case could be delayed if your former partner cannot be present for court dates or respond to paperwork.
Child custody can also be impacted by military divorce, especially if one or both parents are frequently deployed. Then there are military benefits and pensions to consider. Former military spouses may be entitled to some military benefits. For example, some former spouses of servicemembers may qualify to receive spousal benefits. A portion of a former spouse’s retired military pay could also be considered community property in some situations.
Collaborative military divorce might be able to offer couples facing these challenges more options when it comes to settling, negotiating, and finalizing their divorce. For example, with collaborative divorce, both parties agree to settle their differences outside of court.
Because some military couples might have the option of negotiating the jurisdiction in which they will file for divorce, collaborative divorce gives couples the added option of negotiating where they will ultimately choose to file, once they reach a divorce settlement and child custody agreement. This can sometimes simplify the legal process.
If your partner is deployed and is willing (and able) to negotiate the divorce using video conferencing or phone calls, then you may be able to avoid some of the delays that can arise when you serve your military spouse paperwork while he or she is deployed (not to mention avoid the stress of waiting for a court date to coincide with your military spouse’s leave). And when it comes to complex matters of spousal benefits and retired military pay, collaborative divorce might offer you and your former partner ways to devise creative solutions to help you find a resolution to dividing property and pensions.
In this article, we’ll explore some of the benefits of military collaborative divorce, including:
- Jurisdiction in Military Divorce and the Collaborative Process
- Military Divorce When a Partner is Deployed
- Child Support, Spousal Benefits, and Retired Military Pay
Jurisdiction in Military Divorce and the Collaborative Process
Typically, when couples divorce, they and their children have been living in the same state, and that state would have jurisdiction over their divorce. Couples are required to file for divorce in the state where they legally reside. Yet, things can get complicated even in civilian divorces when couples separate and move to different states, when one partner moves with the children to another state, or when the grounds for divorce happen in a state different from where the couple resides. In these scenarios, each state has its own processes for determining residency and jurisdiction.
Military families face unique challenges. Deployment might put one partner in another part of the country or abroad, while the other partner stays home with the children. Families may own property in different states or even own property abroad. Families might move frequently, meaning that they may not live long enough in any given state to establish formal residency requirements for divorce under certain state laws.
In these situations, there are several ways that you may be able to establish legal residency to file for divorce, but each state has its own approach. Under the Military Spouses Residency Relief Act, you and your former spouse might have already established a state of residency for tax purposes. Under the act, servicemembers and their spouses can claim residency in the state where the servicemember or civilian spouse has formal ties, that is, has registered his or her vehicle, registered to vote, and where he or she files taxes.
Yet, when it comes to divorce, residency requirements can differ widely from state to state. Washington state only requires that the spouse filing for divorce reside in Washington, but issues can arise even in Washington state with jurisdiction if the couple owns property in different states, if the children legally reside in another state, or if the spouse from which you are seeking child support resides in another state or is deployed. Some states have even more stringent residency rules, requiring anywhere from 6 months to two years residency before divorce can be filed in the state.
Fortunately, military families often enjoy exceptions when it comes to meeting residency requirements. You may, for example, have the right to file for divorce in the state where one spouse is stationed, or the state where you and your former partner claim residency under the Military Spouses Residency Relief Act (if it is different from the state where you are stationed), or the state where the non-military spouse lives while the other is deployed (as long as the non-military spouse meets the requirements for residency in that state). Ultimately, each state has its own laws for determining jurisdiction for civilian divorces, and sometimes these laws differ when it comes to determining jurisdiction for military divorces.
And if you live abroad due to deployment, establishing jurisdiction for divorce can also be complicated, especially if you claim one state as your state of residency, last lived in another state entirely, own property in multiple states, or even own property abroad. If you and your partner are deployed overseas or live overseas, getting divorced while living abroad can be complicated. And, if you choose to file for divorce abroad in overseas courts, your divorce may not be recognized in the United States.
According to Washington law, there is no set amount a time a person must have lived in Washington state to file for divorce, but the courts may have limited “ability to divide debts, award property, and set child support” if the other spouse lives in another state, has property elsewhere, or if the children legally reside elsewhere. If you have children, Washington courts would need to determine whether it has jurisdiction over your children for child support and custody.
If the children have lived in Washington for at least six months prior to the divorce, or if Washington was the children’s home state prior to parental separation and one parent continues to live in Washington, then Washington state may still have jurisdiction to decide on parenting plans. Jurisdiction in child custody matters can get even more complicated than this, and the state grants exceptions to these rules, in the case of domestic violence and child endangerment. Under Washington law, if you or your spouse is stationed in the state, you can file for divorce in Washington.
In military divorce there are situations where the very question of where the couple will file for divorce becomes an issue and a point of debate. Some state divorce laws might be very favorable to one spouse’s situation, while less favorable to the other, which could lead to “forum shopping.” While forum shopping is discouraged, in military divorce, one spouse might want to file the divorce in a specific state (when there is a choice) because his or her lawyer might believe that the laws of the state would lead to a better outcome. This can only add to potential conflict.
If you have children, you might even face the complication of legally being able to file for divorce in one state, while being legally required to file for child custody and child support in another. There are even scenarios where a couple can file for divorce in one state, be required to file for child custody in another state because this is the children’s state of legal residency but find themselves having to file for child support in the state where the parent who will pay child support is currently living, which could be a completely different state altogether. To prevent these kinds of issues, it is often best when couples can discuss their options, negotiate their divorce settlements (and parenting plans) outside of court, and choose the best location to file together for the simplest possible resolution to their case.
If one partner lives in Washington, or if you are currently stationed in Washington, or if you and your former partner claim Washington as your state of legal residency under the Military Spouses Residency Relief Act, you may have the right to file for divorce in Washington. That said, Washington courts may still have limited ability to deal with property in other states or abroad, and there may be limitations on Washington courts to rule on a child custody case if the children legally reside in another state.
The collaborative divorce process, however, gives military families greater flexibility when working out their divorce settlements, and may offer a more peaceful way forward. Because the collaborative process happens outside of court, couples can decide how to divide out-of-state property and assets as they see fit. Your collaborative lawyers can help you understand your rights under state laws, but ultimately the decision-making capacity is in your hands, and not those of a judge. When couples choose the collaborative divorce process, they also have the choice to make decisions about child custody and child support in private with the assistance of their lawyers, potentially avoiding the challenge of having to fight their petitions in multiple states.
Military Divorce When a Partner is Deployed
If you want to file for divorce while a military partner is deployed, you could also face unique challenges and delays. Under the Servicemembers Civil Relief Act, servicemembers on active duty can delay their divorce case from proceeding until they are able to be present and defend themselves in court. When a non-military spouse files for divorce, the divorce paperwork must be delivered to the military spouse. The military spouse, upon receiving this paperwork, has options.
If the military service member being served divorce papers is on active duty, he or she can ask to “stay” or delay the case until he or she is able to defend himself or herself in court. The military spouse must provide documentation of his or her military orders, a letter from his or her commanding officer, and dates when he or she would be available to attend a court hearing. Usually, the non-military spouse would have to wait for a court date when their military spouse is granted leave.
The military service member can choose to agree to the terms of the divorce in the paperwork, avoiding the need for a court case.
The military service member can choose to not respond. This can create a complicated situation. Normally, when a spouse fails to respond to divorce paperwork, the person filing for divorce would generally get a default judgment, meaning he or she would be granted by the courts his or her proposed division of property, alimony, custody, and the finalization of the divorce. But when a spouse is in the military, the courts cannot grant a default judgment. In this case, a guardian ad litem for the military service member may need to be appointed to investigate the reasons why the military service member cannot respond. In some cases, the former spouse might be totally able to respond and may not be deployed at all; while in other cases, the guardian ad litem might find that the servicemember is not able to answer. In this case, the guardian ad litem would ask the court to delay or stay the proceedings until the military servicemember can respond to the divorce paperwork.
Collaborative divorce affords military couples the ability to take the option of agreeing to the terms of the divorce without the need for a court date, or long stay of proceedings. If both parties agree, and can negotiate the terms of their divorce remotely, through the collaborative process. Of course, not every situation will allow for couples to negotiate remotely. Couples can still choose the collaborative divorce process, agreeing to begin negotiations during the military spouse’s leave, or at a time when the military spouse is available, rather than filing for divorce and waiting for a court date that coincides with when the military spouse returns home.
Child Support, Spousal Benefits, and Retired Military Pay
Child support must typically be sought through the state where the parent who owes support currently lives. But what happens if your spouse is deployed overseas, and you seek child support? In that case, you might be able to seek support through the military. Different branches of the military offer different guidelines. According to Understanding Military Divorce Law: What You Need to Know by Larry N. Burch, “The Navy’s Dependent Support Guidelines provide generous support amounts for dependent spouses and children that exceed most state courts support guidelines.” Yet, other branches of the military might offer no guidelines. Military support can only be sought when there is no state order for child support or no current child support agreement.
According to Burch, military orders are only meant to “provide temporary support… until the parties are able to resolve these issues by agreement or through the civilian court.” Again, this is another situation where collaborative divorce can offer military families a way for parents to reach an agreement about child custody when jurisdiction regarding child support isn’t clear, or where a parent won’t be home for some time.
Spousal benefits and retired military pay is another highly complicated area of the law when it comes to military divorce. Under the Uniformed Services Former Spouse Protection Act, the former spouse of a servicemember may be entitled to spousal benefits if they have been married to the spouse for 20 years, the military service member was in service for 20 years, and the marriage overlapped with 20 years of the spouse’s military service.
The collaborative divorce process can afford older military couples more options if a couple is close to qualifying for spousal benefits. While courts cannot delay a divorce for a year or two if a spouse stands to receive these benefits, couples can sometimes agree to delay their formal divorce through the collaborative process, to protect these benefits.
Military pensions can also be divided through divorce, but the military limits how much of a military service member’s pension can be divided. Under the Uniformed Services Former Spouses Protection Act, state courts can only divide up to 50% of the military pension earned during the marriage. Again, with collaborative divorce, couples can divide marital property in other ways that either avoids involving the military pension altogether or involves the military pension and other assets.
Military divorce can bring up complicated issues. The collaborative divorce process opens the door to creative solutions. If you and your partner are thinking of getting divorced, consider reaching out to the Washington collaborative divorce lawyers at Truce Law. We may be able to help you and your partner with your military divorce.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.