Are There Special Rules Regarding Divorce for Military Families?

The Virginia and Washington, DC metropolitan area is full of a highly transient population. The region is also filled with numerous military personnel and military families. Some of these service members serve overseas, others work at home and many serve both at home and abroad.

But what happens when a military family wants to get a divorce? Are there special rules or circumstances that apply to military families than non-service member families? The answer is yes and no.

Generally speaking, the military views divorce as a private, civil matter – like any other divorce proceeding between non-military couples. However, there are certain benefits and protections afforded military couples going through a divorce.

Military service members and their dependent spouses have access to legal assistance services (attorney advisors), free of charge, through installation legal assistance offices. Each spouse will receive their own advisor to avoid any conflicts of interest. While these legal advisors may not be able to draft and file court documents or represent either spouse in civil court, they can provide guidance on a variety of legal issues such as divorce and child custody matters, income taxes, wills and the Servicemembers Civil Relief Act.  For highly contested issues of child custody, spousal support and property division, though, it will be necessary to hire a knowledgeable family law attorney—like those at DiPietro Family Law Group—to represent you in your divorce.

The Servicemembers Civil Relief Act provides some protection to service members currently going through a divorce. If either spouse involved in divorce proceedings is called to active duty in any branch of the regular armed forces, the National Guard, Coast Guard, etc., then that individual can obtain a ‘stay’ (postponement) of the divorce court proceeding by demonstrating that their military service assignment will prevent them from defending their rights in court. However, a stay is not always guaranteed. The affected service member must petition a military judge for a stay and receive a stay order from the judge. In order to demonstrate the need for a postponement, the service member must show: (1) how the military requirements affect the service member’s ability to appear in civil court; (2) the date when the service member will be able to appear in civil court; and (3) proof from the service member’s commanding officer that military duties will prevent the service member from appearing in court and that leave is not authorized.

Once a service member furnishes the military judge with this proof and the judge approves the application, a stay of at least 90 days will be granted.

Under limited circumstances, the former spouse of a service member may retain military benefits (commissary, exchange and/or medical benefits) even after divorce. However, to continue receipt of these benefits, the former spouse (1) must not be remarried; (2) must have been married to the service member for at least 20 years at the time of divorce; (3) the service member must have performed at least 20 years of creditable service in determining eligibility for retirement pay (even if the service member is not yet retired); and (4) the former spouse must have been married to the service member for at least 20 years of the service member’s retirement-creditable service. These strict requirements are commonly referred to as the 20/20/20 rule.

If you are a (former) service member or spouse of a service member seeking a divorce, currently going through a divorce and/or considering a separation or divorce, be sure to consult with an experienced family law attorney who knows the law and can protect your rights. The DiPietro Family Law Group has teams of experienced family lawyers in Northern Virginia and Washington, DC. Contact us to schedule a consultation today at (703) 370 – 5555 or visit our website.

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