Are Military Divorces Unfair Compared to Non-Military Divorces?

Are there differences between a military divorce and a non-military divorce?

Although there are some differences between the two,  the procedural process between a military and non-military divorce are fairly similar and fair to both sides.

What are the Differences In a Military Divorce?

Procedurally, the process is the same in a military divorce as it is in a non-military divorce. However, there are different factors that can affect the outcome of a military divorce in a way that it wouldn’t in a non-military divorce. A military divorce will mainly affect:

• Where the divorce is filed,
• How child support is calculated,
• Custody and visitation decisions, and
• Pension rights and other military benefits.

Where a divorce is filed is always based on the proper jurisdiction and where the parties reside. It gets tricky when a military spouse is on active duty in a different jurisdiction than a non-military spouse because, in most cases, the case must be filed where the military spouse is domiciled.

Military service members can be sanctioned, including separation from military service, for not complying with a court order directing child support. Military divorces are slightly different in this aspect because child support is always calculated based on income, which for a military member, can include more than just a base pay. Most states will require a military service member to include basic pay plus any housing or other allowances (even if they’re not taxable) for purposes of calculating child support based off income.

The main difference that may arise in terms of child custody and visitation is when a military spouse frequently moves. The biggest difference does come in the form of military pension/ retirement rights and other military benefits, but it’s not written in a way that’s unfair to military servicemen and women.

Let’s Break It Down a Little Further

The Uniformed Services Former Spouses Protection Act (USFSA) doesn’t require an automatic lifetime award to an ex-spouse. Any award that is given does terminate upon remarriage of the ex-spouse and the amount is calculated based on a court order, rather than a certain fixed amount. The Act also requires the parties to meet certain marriage and military service requirements to be eligible for any spousal benefits.

One of the most important aspects of the Act is that states may treat military retirement pay and pension as property, rather than income. Long story short, that just means states can divide a military pension the same way it could a non-military member’s retirement. States will divide marital property accordingly between the spouses per that state’s division of property. That can be anything from an equal division of assets to a 40/60 split.

Further, ex-spouses of military members can be eligible for other military benefits like commissary, exchange, and medical benefits. These are not automatic benefits and certain requirements under the “20/20/20 Rule” must be met. The couple must have been married for at least 20 years at the time of divorce, the military member must have performed at least 20 years of credible service, and the ex-spouse was married to the member during at least 20 years of the member’s credible service.

Each state has their own laws when it comes to property division in a divorce; some have community property laws while other have equal distribution laws. What the USFSA does is make it possible for states to divide retirement the same way it would any other marital property. This isn’t necessarily a bad thing and it makes sure military divorcees are essentially treated the same way as non-military divorcees.