Getting a divorce while serving in the military follows a similar process as a civilian divorce. However, there are some special rules that apply when one or both spouses are servicemembers. Here, we’ll take a brief look at how the divorce process occurs when a member of the military is involved.
The Applicable Law
Divorces are usually governed by state law. However, since servicemembers are employed by the federal government, federal law also applies. Federal law will usually determine how pensions are distributed or where the case will be filed.
One issue that commonly arises with active duty members is the Servicemembers Civil Relief Act (SCRA). This law delays lawsuits or divorce proceedings issued against a servicemember who is on active status. The prohibition on court proceedings extends to 60 days after the servicemember leaves active duty.
For more information about the applicability of federal law contact an experienced lawyer who specializes in divorce law.
Issues With Jurisdiction
In a normal divorce the petition is filed in the county where on of the residents lives. This may not be the case for a military divorce. Instead, the case can be filed where the servicemember is located, where the servicemember claims residency or where the other spouse resides. Care must be taken when deciding where to file the case because some issues (like child support) will be governed by the law of that state. Some states may have favorable or unfavorable laws depending on the filing party’s desired outcome.
Complying With Service of Process
Notifying the service member of divorce proceedings (known as service or process) is a little complicated. As previously mentioned, the SCRA can protect active servicemembers from litigation while on duty. This means it can take up to 60 days after the member leaves active duty status for the service of process to take effect.
Yet, the SCRA does not automatically apply to every service member. Instead, the servicemember must specially apply for this protection through the court. The servicemember must make a sufficient showing that engaging in litigation would significantly affect his or her military duties. In the case that SCRA protection is granted the court will grant a “stay” for a minimum of 90 days. If the request is denied the court will appoint an attorney to represent the servicemember while he or she is on duty.
When a stay is not requested the servicemember must participate in the case. This may done through writing or by in-person appearances. If the servicemember does not show up or respond the court can enter a default judgment.
Spousal/Child Support Issues
An experienced attorney will advise that the military has its own rules regarding spousal and child support. Military support guidelines hold that the servicemember must provide a level of support that matches the full housing allowance at the applicable dependent rate.
It is also possible to garnish military wages. Other types of military pay that can be covered by a garnish include reserve pay, retirement pay or special skills pay. A type of wage withholding order called a “mandatory allotment” is also allowed.
The preceding information covers just some of the issues involved in a military divorce. It is advisable to work with an experienced lawyer who can ensure that all the issues are addressed. Visitation rights and child custody should be handled by a knowledgeable custody lawyer. If you need assistance with a military divorce, contact Rex B Bushman by calling (801) 652-9413.