For U.S. service members, there are special rules that apply to divorce proceedings. These specialized rules affect every aspect of the divorce process, including the court with competent jurisdiction, service of process, division of pensions and benefits, and even child support. If you are in the military, and contemplating divorce, an experienced South Jersey divorce lawyer can guide you through the process from start to finish.
Active duty military personnel are protected by an array of laws enacted to protect them from being divorced while over seas. For example, if an active-duty service member is busy fighting to protect our country, they should not be held in default for failing to respond to a divorce petition. The Servicemembers Civil Relief Act (SCRA) protects military personnel from being served while on active duty, and for the two months following active duty at the court’s discretion.
Where to File for Divorce
In a regular civilian divorce, the county where either spouse resides will typically have jurisdiction to hear the case. For service members, however, things are a bit more complicated because one can reside in one place, but be stationed elsewhere. Jurisdiction can be where the service member is domiciled (where they hold a legal residence), where the service member is stationed, or where the spouse who is filing for divorce resides. The decision where to file is critical, because the state laws governing property distribution, child custody, and child support will apply. As such, if the laws are more favorable in the state where you reside, you may want to file there, even if you are stationed elsewhere. An experienced divorce lawyer can help you make this decision.
Division of Assets
Military pensions, like civilian 401k plans, are subject to being divided in divorce proceedings. Depending on the state where you file, different laws will govern its distribution. Federal Law provides that each state can determine whether to treat a military pension as individual property (not subject to distribution) or marital property (subject to distribution). If a civilian is married to someone in the military for at least ten years, while they served the United States, the pension must be distributed pursuant to the Defense Finance and Accounting Service. There are a number of exceptions and variations to this rule, so it is important to speak to a qualified lawyer, as every situation is different. In some instances, spouses of former service members may also be entitled to medical, commissary, and exchange privileges.
Specific rules also govern alimony and child support when it comes to service members. Courts may require the spouse who provides to obtain and maintain life insurance that would cover alimony and child support payments for some period of time.