Divorce in the Military: What Service Members Should Know

Schwartz, Fox & Saltzman, LLC. – Philadelphia Divorce Lawyers

A divorce in Pennsylvania can be a challenging process. For military families, there are unique considerations which must be taken into account. Whether it is understanding the intricacies of retirement pay, addressing child custody complications, or dealing with health coverage matters, having a divorce lawyer with experience representing those in the military can help you successfully navigate this complicated process.

In this article, the experienced family law attorneys at the law office of Schwartz, Fox, and Saltzman, LLC, provide an overview of relevant legal issues affecting military service members seeking divorces.

How a Military Divorce Differs from a Civilian One

Traditionally, divorce and family law issues are governed solely by State law and are adjudicated in State Courts. Divorces involving military service members are more complex as they implicate various Federal laws governing military benefits, payment of support and other issues. Additionally, a divorce involving military personnel can take longer to resolve as opposed to a civilian divorce due to legally required delays and other events such as overseas deployments.

Military Retirement Pay

Pursuant to Federal law (10 U.S. Code § 1408(c)), Courts in Pennsylvania are permitted to treat military pensions as marital property (§3501(a) of the Property Statute), i.e., an asset acquired during the marriage. Accordingly, a service member’s pension and other thrift saving benefits may be subject to the equitable distribution process under Pennsylvania law (§3502 of the Domestic Relations Statute). If the length of the marriage was 10 years or longer, the former spouse seeking the military pension is eligible to seek payment directly from the Defense Finance and Accounting Service (DFAS).

Extended Delays

Military service members often do not work conventional 9 to 5 jobs. Instead, military personnel are frequently deployed overseas to foreign countries for extended or indefinite periods of time. Accordingly, frequent deployments can lead to extended delays in Pennsylvania divorce proceedings for active duty service members.

Child Custody Complications

A divorce involving a child custody dispute can become more complex when a service member is involved. Pennsylvania courts use the best interest of the child standard (§5328 of the Domestic Relations Statute) to determine which spouse is better suited to care for the child. Due to factors such as deployment schedules and frequent relocations, military service members require the services of an experienced Pennsylvania family law attorney to help them navigate this process and obtain favorable child custody determination.

Health Coverage

Health coverage is another crucial issue which requires attention during a military divorce in Pennsylvania. If the marriage lasted at least 20 years, and the military service member spouse has also completed 20 years of service during the marriage, then the non-military spouse is entitled to lifetime healthcare benefits from TRICARE. However, if there is only 15 years of overlap, then the non-military service member spouse is only entitled to 1 year of healthcare benefits from TRICARE.

Commissary Benefits

Military installations feature commissaries which sell discounted consumer products and groceries. Only military members and their families are permitted to use these facilities. Similar to healthcare benefits, a non-military service member spouse is entitled to commissary access if the marriage lasted for 20 years and the other spouse served for 20 years in the military.

Lengths of the Marriage, Military Service, & Overlap of the Two

As previously illustrated, the length of a marriage and the length of a spouse’s military career, along with the overlap can affect the benefits the non-military spouse can claim during a divorce. Popularly, these periods are known as the “20/20/20” and “20/20/15” rules. Specifically these rules mean:

  • 20/20/20 – The non-military spouse is entitled to full health and commissary benefits if they were married to the military spouse for 20 years and their spouse simultaneously completed at least 20 years of military service.
  •  20/20/15 – The non-military spouse is only entitled to 1 year of TRICARE coverage if the 20 year marriage only overlapped with 15 years of the military spouse’s 20 year career.

Unique Challenges for Divorcing Service Members

Unlike most civilian occupations, a military career is not static. Military personnel are frequently transferred to other domestic or foreign bases, or frequently deployed on overseas combat tours. These issues can affect how a divorce is formally litigated in Pennsylvania. This will also have an impact on a custody matter.

Residency Requirements

As divorces are handled by State courts as opposed to Federal courts, it is essential to choose the correct State to file the divorce action. Under Pennsylvania law (§3104(b) of the Domestic Relations Statute), one spouse must have resided in Pennsylvania for six months in order to be eligible for a divorce. Federal law also allows the military spouse to consent to jurisdiction in Pennsylvania via affidavit.

Servicemembers Civil Relief Act (SCRA)

Congress enacted the Servicemembers Civil Relief Act (50 U.S.C. §§ 3901—4043) in order to provide military personnel with legal protections from civil legal actions such as lawsuits, foreclosures, and repossessions while they are on active duty. Specifically, the law is designed to prevent default judgments being entered against service members, including default judgments in divorce cases (while there are not “default judgments” in Pennsylvania divorces, there are defaults in other states, most notably New Jersey). While the SCRA offers several protections, it does not completely preclude litigation but instead can delay a divorce case while a military service member is on active duty, i.e., deployed.

Can You Get a Divorce While Deployed?

Yes, you can get divorced in Pennsylvania while deployed or at the very least begin the process of getting divorce while deployed. The SCRA allows you to stay, i.e. pause, the divorce case while deployed. Alternatively, you can also waive this requirement and allow the divorce case to proceed during your deployment.

The Uniformed Services Former Spouses’ Protection Act (USFSPA)

In 1983, Congress enacted the Uniformed Services Former Spouses’ Protection Act (10 U.S.C. § 1408). The USFSPA permits State courts to divide military benefits which are normally subject to Federal law. Understanding the provisions of the USFSPA and how it affects the distribution of retirement pay, healthcare, and other benefits is essential.

Steps for Military Divorces

The steps for a military divorce in Pennsylvania are generally the same as a divorce involving civilians. Specifically, the military divorce process begins with preparing and filing a Divorce Complaint and Notice to Defend. Depending on the facts of your case, you can also choose to pursue either a contested or uncontested divorce, or engage in divorce mediation.

How a Divorce Attorney Can Help You

Enlisting the services of a knowledgeable divorce attorney can make a substantial difference in your military divorce journey. An experienced Pennsylvania family law lawyer can guide you through the legal complexities, protect your rights, and help you achieve the best possible outcome. To learn more about the service we can provide, contact the Pennsylvania divorce lawyers at Schwartz, Fox, and Saltzman, LLC, for a free consultation.

Summary of Divorce for Military Service Members

Divorcing as a military member involves specific considerations and challenges. While divorces normally subject only to State law, military divorces often involve the application of complex Federal laws such as the SCRA and USFSPA. Along with this, the unique issues military personnel face such as frequent transfers and combat deployments can also affect the length of a divorce case along with other issues such as property division and child custody disputes.

Get a Call Back From a Child Custody & Divorce Lawyer in Philadelphia

Call Now
Email Us