Military Divorce
How does military divorce differ from civilian divorce cases?
Military divorce cases tend to be more complicated than civilian cases because they are governed by a mix of military regulations, state divorce laws, and federal law. The military considers divorce for the most part to be a private civilian matter, and they do not represent parties in divorce proceedings. Therefore, you need to consult a knowledgable civilian attorney within your jurisdiction for advice regarding military divorce, child custody, child support, division of property, and spousal rights and benefits after divorce.
Significant differences between military and civilian divorce that must be considered include but are not limited to the following:
- Those in the military may be able to choose from a variety of jurisdictions in which to be divorced.
- Federal law in some areas overrides state law and requires the military to split retirement benefits with military spouses if the couple was married long enough for the law to apply. This pertains to the retirement check as well as other benefits like medical care (Tricare).
- Adultery is actually still a crime that is occasionally prosecuted in the military. In civilian life no state has prosecuted anyone for adultery since the 1970s, yet the military still does. If you are an Active Duty military member, be careful not to get caught in a divorce and also administrative punishment for marital indiscretions. Savvy military spouses could use this knowledge as leverage in negotiations leading up to or in the midst of divorce proceedings.
- Protections such as the Service Members Civil Relief Act may limit a state’s ability to secure a default judgment against a military service member if that service member is currently deployed or away from home for military training. Service members can also apply for a temporary stay of any civil action while they are on active duty or within ninety days from their release from active duty.
How to Determine the Right Court Jurisdiction
A court must have jurisdiction in order to grant a divorce to military members, and military divorces have unique considerations that make it more difficult to determine jurisdiction. For example, a military member could be a resident of one state, stationed in a second state, living in a third state, or deployed overseas. Also, both parties to the divorce could be military members, which complicates jurisdiction even more. Therefore, due to the complex issues involved in military divorce, it is important that any member of of the military who is contemplating divorce retain the services of an attorney who is experienced in this area of the law.
Typically, with regard to where military members may file for divorce, the options are: 1) to file where the military member is stationed; 2) to file in the state where the spouse resides; or 3) to file in the state where the military member claims legal residency. It is not wise to file outside of the United States, even though that may seem to be a quick and inexpensive fix.
For military members who file in Tennessee, the following statute governs residency:
T.C.A. § 36-4-104 is titled Residency Requirements. In that section the law states,
“(b) For the purposes of this section, any person in the armed services of the United States, or the spouse of any such person, who has been living in this state for a period of not less than one (1) year shall be presumed to be a resident of this state, and the presumption of residence shall be overcome only by clear and convincing evidence of a domicile elsewhere.”
Evidence regarding residence may include a state issued ID, proof of property ownership, payment of state property or income taxes, or proof of enrollment at an educational institution in the state.
However, jurisdiction is a matter that requires legal advice because each case is unique, and under specific circumstances, it is possible that the following section which would require only a period of (6) months residence could apply for the purpose of filing for divorce in Tennessee:
“(a) A divorce may be granted for any of the causes referenced in § 36-4-101 if the acts complained of were committed while the plaintiff was a bona fide resident of this state or if the acts complained of were committed out of this state and the plaintiff resided out of the state at the time, if the plaintiff or the defendant has resided in this state six (6) months next preceding the filing of the complaint.”
Military Divorce and Child Custody
Military members who have children born during marriage may face difficult parenting challenges. The reality is that many military members move every 1-3 years due to changing military assignments. This puts added stress on military members, or the parent of a child that shares custody with a military service member. When a military member is divorced, child custody and visitation become even more complex.
Child Custody in a military divorce is handled the same as it is in a civilian divorce. Don’t assume that just because you are a member of the military, you cannot have primary custody of your child. Child custody or visitation in Tennessee will be governed by Tennessee law and will be determined according to the best interest of the child.
When one parent is a member of the military, the possibility of deployment or reassignment is always a factor. There is a statute T.C.A. § 36-6-108 in Tennessee that governs parental relocation. This statue has no exception for military service members; thus those in the military that are required to move to conduct military service must comply with the statute just as all those with valid Tennessee parenting plans must do if they desire to relocate.
When developing a parenting plan, it is best to work collaboratively and think beyond the current living situation and age of your child. Circumstances change and there may need to be subsequent modifications to an existing parenting plan, always with the best interest of the child in mind.
Military Divorce and Child Support
Tennessee’s child support laws apply to military families just as they do to civilians. Child support calculations are generally based on the amount of time each parent spends with the child and the income each parent earns. Daycare expenses, medical expenses, and the amount of child support the parents are already paying or receiving are other factors. In addition to Tennessee state laws regarding child support, the military has regulations that require service members to provide adequate support for their dependents. Military chains of command take allegations of unpaid child support seriously and such allegations can negatively impact a service member’s career. Tennessee child support calculations define income broadly, encompassing money from any source even if unearned. Thus military income would include Basic Allowance for Housing, Basic Allowance for Subsistence, and other military benefits. Military pay is subject to wage garnishment from a court order.
Division of Property
Military cases are also complex when it comes to determining an equitable division of personal property. When divorces are litigated in Tennessee, the court will determine the division of property as part of the process or the parties will agree and the court will sanction a Marital Dissolution Agreement. Property owned during a marriage will be classified as either separate or marital property. Marital property is equitably distributed in a divorce under Tennessee law. Separate property usually remains with the spouse who owned that property. However, under some conditions, separate property may instead be classified as marital property subject to equitable distribution.
Domestic Violence
If you are a victim of domestic violence, get the help you need. The military provides numerous avenues for seeking help through websites, help lines, your local Chaplin, your local military police office, and other resources. If you wish to discuss the matter with a Cole Law Group civilian divorce attorney, your information will be protected by attorney-client privilege and will be kept confidential to the fullest extent allowed by law.
The military takes allegations of domestic violence seriously. Thus, service members accused of such action can face career ending consequences.
If you or someone you know needs help with a domestic violence issue, free tools for accessing immediate assistance are available 24/7:
- Call 911 if you or a loved one are in immediate danger
- The National Domestic Violence Hotline at 1-800-799-SAFE (7233)
- Military OneSource at 1-800-342-9647 to locate a victim advocate and review reporting options
- Real Warriors Live Chat Psychological Health Resource Center or by calling 1-866-966-1020 to talk to a trained health resource consultant
Paternity and the Military
If you are a military service member and have been told that you are the father of a child, the first thing you should do is have a DNA test to confirm paternity. You can file a Petition for Parentage in the appropriate juvenile court in Tennessee. If you are the father, then expect your child support obligation to apply from the day the child is born.
If you believe a military service member is the father of your child, you may alert him and take action to require him to pay child support as authorized by Tennessee law. You may also consider reaching out to his chain of command, as the military takes allegations of unpaid child support seriously, and his commander will likely take action to require him to support the child according to military regulations.
Division of Military Retirement
Federal law specifies that military retirement benefits must be split so that the spouse receives at least half of the retirement pay from the military retiree if the marriage lasted more than 10 years and the parties were married for 10 years or more during which the member performed military service. See the Uniformed Services Former Spouse Protection Act (USFSPA; 10 U.S.C. §1408). If the marriage lasted more than 20 years, and the spouses were married during 20 years of service, then the spouse also can keep military medical benefits and commissary and exchange privileges as well. This rule is based on federal law that recognizes the sacrifices military spouses make in supporting the careers of the military member.
For further information about USFSPA, see the Defense Finance and Accounting Service’s legal overview of the issue at https://www.dfas.mil/garnishment/usfspa/legal.html
Division of Disability Pay
Another important consideration is whether disability pay can be distributed in a divorce. Disability pay is considered a personal injury award under Tennessee law, and thus should not be distributed as marital property. Judges are aware of this rule because it comes up commonly regarding judgments received by one of the spouses in personal injury cases.
In military divorce it’s essential to have a clear understanding of the issues surrounding military disability retired pay and VA disability compensation. Therefore, once again it is strongly advised that service members and military spouses going through a divorce consult a knowledgeable military divorce attorney.
Spousal Benefits After Divorce
Spousal benefits after divorce should be distributed according to federal law. The Uniformed Services Former Spouse Protection Act (USFSPA) allows military retirement to be divided as marital property within a divorce decree, but the division is determined by state law. If for some reason military retirement benefits were not appropriately divided in the divorce settlement, they can still be adjudicated in certain cases. This can be accomplished through a complaint for declaratory judgment and a request that the court adjudicate the benefits owed to the former spouse under the appropriate law.
In addition, A former spouse can be designated as a Survivor Benefit Plan beneficiary, a benefit that is either decided by the divorcing couple or through a state court. Former spouses may be eligible to continue medical coverage through TRICARE if they meet the criteria for the Health Benefits under the 20/20/20 Rule, the Health Benefits 20/20/15 Rule, or the Health Benefits for Un-remarried Military Spouses. Post exchange, Commissary benefits and the right to retain the Military ID are all available to former spouses who qualify under the 20/20/20 rule.
If you are a current or former military member or military spouse and you need domestic legal assistance, call Cole Law at (615) 454-1389.