Special Legal Issues For Those in The Military or Military Dependants in Divorce Proceedings

Congress has acted over the last century to grant service men and women special legal protections not given to the public at large. The primary goal of these protections are to enhance the military preparedness of the United States and to protect the federal benefits of those serving in the military such as retirement and disability pay. With each protection, however, comes a limitation.

If you or your spouse are in the military and you are considering a divorce, are in a divorce action, or have been divorced, you should take extra care to make sure your attorney understands the following issues:

See also Seven myths concerning military divorce in Washington state

  1. Protection of military retirement benefits: The federal government will not allocate any of the military members retirement to the spouse unless the couple has been married 10 years or longer while the member has been in the service. However, the state courts may require a military member to make direct payment to the spouse for a portion of the military benefits. The law of the states primary govern a divorce action and property issues. State orders entered in the divorce must comply with the (federal) military laws to be effective.

  2. Legal protection from defaulting in legal actions: An active duty military member has protections against being held in "default" from failing to respond to a legal action.

    Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the court, the legal proceeding may be stayed (delayed) for the time the service member is on active duty and for 60 days thereafter. This law also applied to divorce actions. The court may appoint an attorney for the service person for the purpose of preventing the default.

    If you are served with documents concerning a divorce, you should still contact an attorney to protect your legal rights. For instance, it may be in your best interest to continue with the divorce.

  3. Special Jurisdictional (technical) protections: In some circumstances, the court may have jurisdiction over the marriage of the parties but not over the military retirement.

  4. Special protection from disability pay being divided: The military will not recognize a court order which attempts to divide disability benefits to the spouse. However, the military dependent may seek to seek funds from the military member in other ways.

    However, the court may allocate other property to the spouse to make up for this loss.

Summary: The legal issues concerning those in the military in divorce issues are often more complex than when both parties are civilians. In addition to issues such as the custody of the children, child support issues and property division, those in the military must also be concerned with their military pension which can pay benefit of over $100,000.

You should ensure that your attorney has significant experience in crafting the dissolution action to comply with the military pay centers concerning retirement issue.

Attempting to handle a case with an attorney without specific knowledge of the legal issues regarding military members or (even more risky) without an attorney at all often results in a very harmful outcome.

The above is intended for informational purposes only and should not be relied upon for legal advice. You should seek and attorney licensed in your state to assist you in your case to protect your legal rights.

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