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Understanding differences in a military divorce

In a legal sense, the divorce process for military personnel in the Garden State is much the same as it is for civilians. For instance, the grounds for divorce are no different than what they are for nonmilitary couples. Filing requirements are flexible as you or your spouse must either be residents of or stationed in New Jersey for the requisite period of time.

But regardless of whether you or your spouse is in the service, some additional factors apply in the case of a military divorce. One is a matter of common sense; specifically, that the process may take longer when an active duty member is stationed overseas. But there are others to consider as well.

Military divorce and the USFSPA

Military couples need to understand the role of the Uniformed Services Former Spouses’ Protection Act. The USFSPA is a federal rule directing the military to use state statutes to divide military retirement assets and determine child and spousal support amounts. Here are a few key issues:

  • Military retirement pay and pensions: Under USFSPA, states can consider these plans as property to be divided. In order for a nonmilitary spouse to receive direct retirement payments from the Defense Finance and Accounting Service (DFAS), the parties must have been married for at least 10 years, with the military spouse having at least 10 years of service during the marriage; in other words, at least 10 years of military service overlapping with at least 10 years of marriage. This is referred to as the “10/10 Rule.” If the 10/10 Rule is not met, then the military spouse must provide the former spouse his or her share directly (e.g., check, allotment, automatic payment, etc.), typically, as the military spouse receives it.  
  • Tricare: Eligibility for nonmilitary spouses to continue receiving military health care coverage is determined by the “20/20/20 Rule,” which requires that the individuals  were married for at least 20 years, the military spouse has at least 20 years of military service, and there is at least a 20-year overlap of marriage and military service.
  • Base privileges: The “20/20/20 Rule” also permits a former spouse’s ongoing entitlement to base access for exchange, theater and commissary. However, these perks exist only so long as the former spouse does not remarry.
  • Survivor benefits: Nonmilitary spouses named as beneficiaries in the Survivor Benefit Plan (SBP) do not automatically retain that designation after a divorce. The SBP is considered an exclusive benefit for the military member, but it can be negotiated during the divorce process. Thus, it is very important to incorporate this as an aspect of any divorce litigation or settlement.

Meeting the unique challenges of a military divorce

Ending a marriage can be devastating for everyone, but the context and circumstances associated with military relationships can add more stress to an already complicated and stressful situation. It is advisable to work with a knowledgeable matrimonial attorney with significant experience handling these cases in particular.

An attorney with experience in military divorce cases understands how benefits are divided, how different forms of income are captured for consideration by the court, and will employ a tailored approach in handling complicated disputes over child custody and support which can be particularly nuanced for military families.