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Part 1 – How Does Military Divorce Differ From Standard Divorce?

If you or your spouse is a member of the military, especially if he or she is currently on active duty, it is absolutely critical that you have an attorney who has experience with military divorces. This two-part series will help you to get a better understanding of all the issues involved in a military divorce so you can be better prepared to deal with it if necessary.

While there are some similarities to civilian divorce (the same basic principles of property division, and spousal and child support still apply, and your divorce will still be adjudicated in a state court), many of the procedures and timetables will be very different.

Which state law governs a military divorce?

The question of which state's law will govern your divorce and which courts will adjudicate any issues that come up can be very complicated. Briefly, up to three states can be relevant:

  1. The legal residence of the military spouse
  2. The legal residence of the other spouse
  3. The state where the military spouse is stationed

All of these terms have very specific definitions.  And since the question of which state's law will govern your divorce has very serious ramifications, you need to understand your options if you are the spouse who is being served with divorce papers, and how to counter a possible bad choice in state law.

How does active duty status affect military divorce?

If you or your spouse is currently on active duty or recently left active duty, a law called the Service Members' Civil Relief Act (SCRA) protects the military spouse against lawsuits, including actions for divorce and child custody.  It is worth noting that “active duty” is not limited to overseas postings.  The law is complicated and if you need child support or if your child's living situation is not in his or her best interests, there are exceptions for temporary modifications.

If the military spouse does not want the divorce, the proceedings can be stayed while they are on active duty and for 60 days afterward.  On the other hand, the divorce and child custody proceedings cannot be postponed indefinitely, and the length of the marriage is often relevant for issues like the spouse's share of military pay and retirement pay.  If the divorce is inevitable, it is often in the military spouse's interest to hire a lawyer and let the proceedings continue, even if they can be stayed by the Act.

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