A PRO SE DIVORCE IN THE MILITARY
Service members can use 3StepDivorceTM to end a marriage while they are on active duty in the military. The 3StepDivorceTM system works even when both spouses are active duty stationed around the globe.
When both spouses agree to an uncontested divorce, they can file pro se. 3StepDivorceTM is an easy and affordable online solution to do an amicable divorce. With 3StepDivorceTM a "do-it-yourself flier" instantly completes and prints the divorce paperwork and files the paperwork in their local court. The paperwork deals with all marital issues including but not limited to property, debt, support, and children.
While military divorces are no more challenging than civilian divorces, there are special rules and requirements that apply to divorcing service members and their spouse. When at least one spouse is active in the United States military, the action is often called a military divorce. An uncontested military divorce is very similar to a standard uncontested divorce, except for a few additional statements or clauses that are included in the divorce paperwork. Both state and federal laws govern a military divorce. Federal laws may affect where divorcing couples end up in court or how military pensions are divided, and state laws may affect how alimony and spousal support are awarded.
Military divorce is not a legal term, but a lay term used to describe a divorce where one of the parties is a member of the military.
Being a military couple does not exempt the parties from the same requirements that civilian couples must meet in a divorce. Some states have relaxed the residency requirements for active duty service personnel who want to file for divorce in the state in which they are stationed. Military couples follow the same procedures when divorcing.
Military couples may have different factors that will influence their divorce as a result of military service.
When filing for divorce, the military member can file in his or her home of record, where the military member is stationed provided he or she meets the state's residency requirements, or the spouse, if not a military member can file where he or she has residency.
Whichever state the divorce is filed in, the grounds for divorce, property distribution, child custody and child support issues are governed by the laws of that state.
Divorcing service members should remember to consider SCRA. Originally titled The Soldiers' and Sailors' Civil Relief Act of 1940 and now amended to the Servicemembers Civil Relief Act, SCRA protects the interests of the military service member. The purpose of SCRA is to protect the service member while in active duty until such time as the service member returns and can properly defend him or herself in the divorce action. The Act provides that a spouse cannot divorce a military member without the military member's knowledge. Below is additional information on how to file for divorce in the military.
Residency and Filing Requirements
When filing for a military divorce, as stated above, the parties have options non-military members do not have. The laws of the state where the petitioner files govern the divorce.
A court must have jurisdiction to hear the case before a court can grant the divorce to military members or spouses. For civilians, jurisdiction is generally the place where the person lives. However, for military personnel, jurisdiction may be the place where the service member holds legal residence, even if the service member is stationed somewhere else.
A domicile is a person's permanent home, his or her state of legal residence. A service member can maintain a domicile even while not living there, if it has been his or her home and he or she intends to return and live there permanently. Being registered to vote and paying state income tax in a state are two strong indications of intention to return. Some other indications include home ownership, family connections, and auto and voter registrations.
A service member can file in a state he or she is stationed in, provided he or she meets the residency requirements of that state. This is something to consider when filing for divorce. A service member's home of record is the state he or she lived in when enlisting in the military and put down as his or her home of record.
A Resident for Divorce Purposes
Residency requirements vary by state; some require living in the state as little as 3 months, some are 12 months before a couple can file for divorce in that state.
Some states require physical presence to establish residency. Most states consider military members residents even though they are absent from the state because of military service.
A foreign divorce might seem attractive for someone stationed where divorce is easy and inexpensive, but the military won't honor a pension division order from a foreign country, and it's hard to know whether a divorce judgment itself will be recognized in the United States.
Servicemembers Civil Relief Act (SCRA)
Active-duty service members are generally protected from divorce proceedings in most cases. Under the Servicemembers Civil Relief Act (SCRA), U.S. service men and women cannot be sued while on active duty for 60 days following active duty (at the discretion of the court). This is so military service members may devote their time and energy to defending the nation. This provision ensures service members are able to concentrate on their military obligation without worrying about issues at home.
Active duty service members can use SCRA to contest the or let the action continue by waiving his or her rights to SCRA. For example, a spouse-husband is in Afghanistan, would not be able to be present for the divorce, a stay would probably be granted. This stay essentially postpones the litigation until the military member can properly show up to court and defend is position in the divorce action. A military divorce may be slowed if the military member decides to exercise his or her rights under the Servicemembers Civil Relief Act (SCRA).
SCRA protects soldiers, sailors, airmen, Marines, Coast Guardsmen, commissioned officers in the Public Health Service and National Oceanic and Atmospheric Administration, on active duty as well as citizens serving with allied military forces for the duration of a military conflict. In addition to divorce, SCRA protects service members in other civil actions including breach of contract, bankruptcy, and foreclosure.
As long as spouses are both signing the divorce papers, then knowledge of the divorce by the service ember is accepted and there is no delay in getting the divorce caused by the Servicemembers Civil Relief Act (SCRA). The Servicemembers Civil Relief Act (SCRA) is aimed more at protecting those service members who are not aware his or her spouse wants a divorce or those in a more contested situation.
Military Pensions and Benefits
One primary difference between a military divorce and a civilian divorce is in the division of pensions. In a military divorce, state courts divide retirement benefits according to the Uniformed Services Former Spouses' Protection Act (USFSPA). State courts treat retirement pay as property, not income, and award up to 50 percent of it to the former spouse. USFSPA permits a former spouse to receive retired pay directly from the finance center, based on the number of years married concurrent with military service.
Moreover, USFSPA does not prevent the award of other support from retired pay. The division of retired pay may be made apart from any alimony or child support. Furthermore, since it is property, the pay continues even after the remarriage of the former nonmilitary spouse.
USFSPA applies to all military members, regular and reserve components on active duty, or previously retired in all branches of the military.
The USFSPA does not provide a formula for dividing the amount of retired pay, but specific state laws usually dictate the amount awarded.
Further, the Defense Finance and Accounting Service (DFAS) makes distribution of the former spouse's share of military retirement when there was at least 10 years of marriage that overlapped with 10 years of military service. This is called the state ten-year rule. Regardless of the length of marriage, however, a court may still authorize direct payment to a military spouse who has been married for less than 10 years , but it would have to be awarded in the form of alimony not division of marital property.
Moreover, In addition to pension benefits, spouses of former military personnel are also eligible for full medical, commissary and exchange privileges when the couple was married for 20 years or more; the service member has performed at least 20 years of creditable service toward retirement pay, and there was at least a 20-year overlap of marriage and military service.
Spousal and Child Support
The military has special rules concerning spousal maintenance and child support designed to ensure a service member's family support obligations beyond a divorce or separation. A court may enforce spousal and child support obligations in a number of ways, including court order, garnishment, voluntary or involuntary allotment. A court may also require the providing spouse to maintain life insurance that would cover child or alimony support payment.
Military Medical Benefits after Divorce
Active service members and their families qualify for health benefits under a program called Tricare. Tricare offers several plans, but the basic family plan is free for Servicemembers.
After a divorce, service members' dependent children are still eligible for Tricare coverage. However, the type and amount of Tricare health benefits a former spouse may receive depends primarily on the length of the marriage. A former spouse won't qualify for continued care under Tricare unless they meet either of the following two rules.
1) Complete coverage under the 20/20/20 rule. Under this rule, former spouses may continue their medical coverage under Tricare when the marriage lasted at least 20 years; the military member served in the military for at least 20 years; the marriage and the military service overlapped by at least 20 years; the former spouse has not remarried, and the former spouse has not enrolled in an employer-sponsored health insurance plan.
Former spouses that meet the 20/20/20 rule are entitled to comprehensive medical coverage continuing through the age of 62, or until they're eligible for Medicare. Their benefits include the use of military treatment facilities and pharmacies.
2) Limited coverage under the 20/20/15 rule. Under the 20/20/15 rule, the former spouse must meet all of the requirements stated above, but the overlap required is 15 years rather than 20 years. Medical benefits for a spouse that meets the 20/20/15 rule are not as comprehensive as those available under the 20/20/20 rule. They include continuing medical coverage under Tricare and access to military treatment facilities and pharmacies for only one year after the divorce. After the first year, 20/20/15 spouses are treated the same as all other former spouses in terms of eligibility for health care benefits.
The Continued Health Care Benefit Program
The Continued Health Care Benefit Program (CHCBP) extends at least some medical benefits to former military spouses, regardless of the length of the marriage. Spouses who do not meet the 20/20/20 or 20/20/15 rules may qualify for health care through CHCBP.
Enrollment in CHCBP protects spouses from a lapse in coverage in the transition from military health care plans, such as Tricare, to new civilian health plans. Spouses enrolled in CHCBP receive temporary health care coverage following the loss of Tricare benefits. CHCBP benefits are similar to Tricare benefits, however, former spouses have to pay in order to participate, and they won't have access to military treatment facilities or pharmacies. CHCBP may also provide former spouses coverage for preexisting conditions not covered by a new employer's benefit plan.
Nearly all former spouses, regardless of the length of their marriage, are eligible to enroll in CHCBP as long as they meet the following requirements:
- they are not remarried;
- the former spouse was enrolled under a health benefits plan such as Tricare at the time of the divorce, and
- the former spouse enrolls in CHCBP no later than 60 days after losing eligibility (for example, 60 days from the date of the divorce).
- the former spouse has not remarried before age 55;
- the former spouse was enrolled in an approved health benefits plan at any time during the 18-month period before the date of the divorce;
- the former spouse has not enrolled in an employer-sponsored health insurance plan, and
- the former spouse receives (or is eligible to receive) a portion of the service member's retired pay, or
- is the beneficiary of a survivor annuity pursuant to a court order.
Upon a divorce, any election to provide coverage for former spouses must be made within one year of the divorce, or else the former spouse's coverage will be forfeited. SBP can only go to one spouse at a time and cannot be apportioned between spouses. For example, if a servicemember elects to provide SBP coverage to a former spouse pursuant to a court order, such as a divorce decree, and the servicemember remarries, he or she cannot elect to provide SBP coverage to the new spouse.
A spouse's coverage under the SBP stops at the date of divorce, since the status as spouse ends on that date and termination of the divorced spouse's eligibility is automatic. A servicemenber should provide DFAS with a copy of the divorce decree, and a written request to change coverage from spouse coverage to former spouse coverage. It is important to remember, however, that a Former Spouse is only entitled to SBP coverage if they have not remarried prior to reaching the age of 55.
The Defense Finance and Accounting Services (DFAS) automatically deducts the monthly premiums for SBP coverage from the servicemember's retired pay.