The distinctive experiences of military personnel compared to those of the average civilian lead to far more than just a difference in job description. These differences can have an impact on all aspects of a servicemember’s life and divorce is no exception. While most divorces are only bound by the laws of the state they occur in, such as North Carolina, military divorces are also governed by federal statutes and military regulations. If you’re facing a military divorce, it’s essential to understand the unique challenges you may be up against. Here is information on how to best protect your rights, responsibilities, and future, from an established military divorce lawyer.
Jurisdiction and Residency Requirements
Every divorce is subject to the laws of where the person getting divorced lives. In a typical divorce, you would file in the county where at least one of the spouses reside. While that sounds simple enough, this is where the first major challenge for a military divorce can occur.
Military families have a harder time determining residency when must relocate far more often than the average person. Merely moving to a particular state or having an address there may not be enough to establish jurisdiction. For example, even if you find yourself stationed in North Carolina and have fully relocated, local law requires that at least one spouse has lived (and is currently living) in NC for at least six months prior to filing.
While jurisdiction may be hard to establish depending on your situation, there are protections in place for those who serve. The Servicemembers Civil Relief Act (SCRA) can spare servicemembers from certain civil duties they would not be able to engage in due to the nature of their job. With these protections, you can delay divorce proceedings until you return from duty. This stops underhanded filings dead in their tracks and applies even if you are stationed overseas or in another state.
Dividing Military Pensions and Benefits
Another significant legal challenge in military divorces involves the division of military retirement benefits. These benefits are not the same as civilian pensions. They are governed by the Uniformed Services Former Spouses’ Protection Act (USFSPA), which allows state courts to treat military retirement pay as marital property subject to equitable distribution.
How much is my former spouse entitled to?
This depends on a multitude of factors, including:
- Length of the marriage
- Length of the service member’s military service
- Overlap between marriage and service (the “10/10 rule” for direct payments from DFAS)
Other military benefits can also be subject to marital division, including healthcare benefits through TRICARE, access to commissaries, and Survivor Benefit Plans (SBP). The division of these benefits is also dependent on how long the marriage overlapped with military service. It’s important to take all of this into account when negotiating asset division. Make sure you receive a fair offer and don’t agree to anything prematurely.
Child Custody and Deployment Considerations
Military life is demanding and unpredictable. While judges in North Carolina often favor 50/50 child custody, the issues that servicemembers endure can create a less than ideal home life for this kind of custody arrangement. From deployments to irregular schedules, working out custody and visitation are not always so simple for military families.
Custody in North Carolina always prioritizes the best interest of the child. This is where the desire of judges to rule in favor of 50/50 custody comes from. Children benefit overall from having two loving and willing parents in their life. Because of this, they also take into account the practical realities of military service. Service members often need flexible parenting plans that include virtual visitation, contingency schedules, and relocation clauses to accommodate their jobs and judges are amenable to that.
As for making sure servicemembers are protected in custody proceedings, federal and state laws like the aforementioned SCRA and the Uniform Deployed Parents Custody and Visitation Act protect the rights of deployed parents. This prevents permanent custody modifications or proceedings while they are unable to appear in court.
Support Obligations and Military Pay
Both spousal support and child support may need to be calculated in any divorce. In a military divorce, careful consideration should be given to a service member’s Leave and Earnings Statement (LES). Basic pay, housing allowances (BAH), special duty pay, and other benefits all factor into income calculations.
As this can majorly impact the amount owed, it’s crucial to work with an attorney who understands military compensation structures. They will help ensure an accurate and fair support obligation no matter the circumstances.
Legal Representation and Military Protections
Military spouses and service members have access to legal assistance services, but those military attorneys cannot represent either party in court. This makes hiring an experienced civilian family law attorney with military divorce expertise essential.
While this article has talked in depth about how divorce can affect a spouse who is a servicemember, civilian spouses married to a servicemember have their own set of problems to worry about. This can include maintaining access to health care, housing, and other benefits post-divorce. As such, it’s important for civilian spouses to seek out family law attorneys with military divorce experience as well.
Conclusion: Preparation is Key in Military Divorce
A military divorce presents unique challenges that go far beyond a typical separation. From jurisdictional hurdles and federal regulations to specialized benefit divisions and custody concerns, these cases demand strategic planning and informed advocacy.
At Rosen Law Firm, we understand both the legal complexity and emotional toll that military families face during divorce. Whether you are stationed in North Carolina or overseas, our attorneys are here to guide you with extensive experience in military family law.
Contact us today or call us at (919) 787-6668 to schedule a consultation with an experienced military divorce lawyer and protect your rights and your future.
Lisa is a leading figure in North Carolina’s family law field, dedicated to guiding clients through challenging times with compassion and expertise. As the President and Owner of Rosen Law Firm, P.A., Lisa has built a successful practice specializing in divorce, child custody, child support, alimony, equitable distribution, and domestic violence. She has been a North Carolina Board-Certified Specialist in Family Law since 1998.
