While divorce is largely governed by state law and local procedures, there may be unique legal issues to navigate during a divorce due to military service. You can ease the time, expense and emotional strain of divorce by learning what to consider as you move through this process. Be sure to contact your legal assistance center for more information on your specific circumstances.
Military legal assistance
Free military legal assistance services are available through the installation legal assistance offices. In a divorce or family law matter, services may include:
- Separate legal assistance attorneys for the service member and the spouse
- Advice on legal issues, including divorce and child custody, income taxes, the Servicemembers Civil Relief Act and wills
- Notary services
Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act applies to military service members and may affect divorce proceedings. Protections include:
- A "stay" or postponement of a civil court or administrative proceeding if the service member proves he or she is unable to attend because of duty
- Certain protections on default judgments for failure to respond to a lawsuit or failure to appear at trial
The Uniformed Services Former Spouse Protection Act
The Uniformed Services Former Spouse Protection Act is a federal law that provides certain benefits to former spouses of military members. An un-remarried former spouse may receive medical, commissary, exchange and theater privileges under the Morale, Welfare and Recreation program if he or she meets the requirements of what is known as the 20/20/20 rule:
- The former spouse was married to the military member for at least 20 years at the time of the divorce, dissolution or annulment.
- The military member has performed at least 20 years of service that is creditable in determining eligibility for retired pay (the member does not have to be retired from active duty).
- The former spouse was married to the member during at least 20 years of the member's retirement-creditable service.
The former spouse is entitled to TRICARE medical coverage for a transitional period of one year if he or she meets the requirements of the 20/20/15 rule:
- The service member performed at least 20 years of creditable service.
- The marriage lasted at least 20 years.
- The period of the marriage overlapped the period of service by at least 15 years.
Under the 20/20/15 rule, the former spouse does not have access to the military exchange, installation privileges or commissary privileges.
Effect of divorce on military benefits
You may retain your identification card and continue to receive your commissary, exchange and health care benefits until your divorce is final regardless of whether you meet the 20/20/20 rule. Here are some additional issues to consider:
- Installation housing — You will typically lose installation family housing within 30 days of the service member or other family members moving out due to a divorce.
- Moving costs — The military may pay the moving expenses of the non-military spouse returning home from an overseas duty station. The divorcing parties could negotiate the cost of an in-state move as part of the settlement.
- Health care benefits — When you lose TRICARE benefits because of divorce, you can buy up to 36 months of temporary health care coverage through the Department of Defense Continued Health Care Benefit program. Learn more through the TRICARE website. Eligible biological and adopted children of the service member may receive TRICARE benefits up to age 21 (or age 23 if enrolled in college).
- Spousal and child support — Each military service has policies requiring service members to support family members upon separation in the absence of an agreement or court order. These policies are designed to be temporary. A commander's authority is limited without a court order. You must send the court order to the Defense Finance and Accounting Service directing the government to pay monies for support or alimony. Learn more on the DFAS website.
A divorce filed overseas can be more complicated than if the couple files with a state.
A U.S. court may not recognize a divorce filed overseas, so it's best to file in the United States. Military divorce laws allow service members and their spouses to file for divorce in:
- The state where the nonmilitary spouse resides
- The state where the service member is currently stationed
- The state where the service member claims legal residency. This state retains the power to divide the military pension.
Some things to consider when filing for divorce while living overseas include:
- Talk with a civilian attorney or the military legal assistance office if you own property overseas, such as a house.
- Family members and their property can be brought home at government expense before the service member's tour of duty ends.