Divorce and Family Law Challenges for Military Veterans

Divorce and family law can be difficult for anyone, but current and former armed service members face unique legal considerations that can significantly impact the process. As a Marine Corps Veteran, I understand both the personal and legal challenges military families face. Out of many unique legal issues, military members dealing with divorce or family law should pay special attention to the division of military pensions, jurisdictional issues, and protections offered by the Servicemembers Civil Relief Act (SCRA).

One of the most significant differences in military divorces is the treatment of military pensions. Military pensions are considered marital property under the federal Uniformed Services Former Spouses’ Protection Act (“USFSPA”). This empowers State courts to divide military retirement pay as part of a divorce, even if the spouse has not directly contributed towards the pension. This comes as a surprise to many military veterans getting divorced, and can have a significant impact on post-marital finances if not properly considered. Special considerations also apply if the service member receives disability benefits. Veterans’ disability benefits, unlike military pensions, are not divisible in divorce. However, if a service member opts for disability in place of retirement pay, this can complicate property settlements, as it may reduce the pension’s value available to the non-military spouse.

Jurisdictional questions frequently adds a layer of complexity to military divorces, as service members very often are stationed far from their legal residence. Jurisdiction in a divorce case refers to the court’s authority to hear and decide the matter. Military members and their spouses may file for divorce in:

• The State where the service member is stationed.
• The State where the spouse resides.
• The State of legal residency for either party.

Each State has different laws regarding property division, alimony, and child custody, so choosing the right jurisdiction can significantly impact the outcome of the case. It’s essential for military families to consult with an attorney experienced in both family law and military-specific issues to determine the best jurisdiction to file for divorce.

Active duty and reserve members should also be cognizant of the SCRA. The SCRA allows military members facing civil proceedings, including divorce and family cases, to request a stay (or temporary halt) of proceedings if military duties prevent the service member from participating in the case. This can be particularly important if a service member is deployed or stationed overseas.

Child custody and support are also areas where family law for military members can present unique challenges. Frequent relocations, deployments, and changing schedules can have a substantial impact on custody arrangements. Courts always consider the best interests of the child in such situations, but military obligations can make traditional custody schedules more difficult to maintain. A flexible custody arrangement may be necessary, and courts typically recognize the need to accommodate military duties when determining parenting plans. Additionally, child support calculations may be influenced by the service member’s Basic Allowance for Housing (BAH) and other military-specific income.

As a Veteran, I know firsthand the sacrifices military families make. Your legal rights in a family law case should not be one of them. If you are a current or former military member facing divorce, it’s essential to work with an attorney who understands the unique aspects of military life and the legal protections available to you.

About the Author

Robert Devaney, an associate with the firm, concentrates his practice in labor & employment law, education & school law, and family law. Robert focuses a large part of his practice on working with Military Veterans with their labor, employment, and family law matters. Having served in the United States Marine Corps for nine years before receiving his Honorable Discharge, Robert has a unique understanding of the issues that Veterans face in these areas. For example, he serves as legal counsel to the New Jersey Veterans Network.