Special Considerations in Divorces Involving Retired or Active-Duty Military

In honor of Veterans' Day, we recognize the unique sacrifices made by our military service members and their families, including the complex challenges they may face during divorce proceedings.

Divorce is never simple, but when one or both spouses serve in the military, additional layers of legal complexity come into play. Whether you're an active-duty service member, a military retiree, or the spouse of someone in uniform, understanding these special considerations is crucial to protecting your rights and achieving a fair outcome. In this post, a Syracuse divorce attorney explains what you need to know.

The Servicemembers Civil Relief Act (SCRA)

One of the most important protections for active-duty military members going through divorce is the Servicemembers Civil Relief Act. This federal law provides significant safeguards, including the ability to postpone divorce proceedings if military duties prevent participation in court.

If you're deployed or stationed away from New York, the SCRA may allow you to stay the proceedings until you can adequately participate in your case. This ensures that service members aren't forced to navigate complex legal matters while fulfilling their military obligations or serving in harm's way.

Jurisdiction and Residency Requirements

Military families often move frequently due to permanent change of station (PCS) orders, which can create confusion about where to file for divorce. In New York, you can generally file for divorce if either spouse is a resident of the state, but the definition of residency can be nuanced for military families.

A service member stationed in New York may or may not be considered a legal resident, depending on their state of legal residence (domicile). Conversely, a non-military spouse living in New York due to a service member's assignment typically can establish residency. These jurisdictional questions can significantly impact where and how you proceed with your divorce.

Division of Military Retirement Pay

Military retirement benefits are often one of the most valuable marital assets, and their division is governed by a complex interplay of federal and state law. The Uniformed Services Former Spouses' Protection Act (USFSPA) allows state courts to treat military retirement pay as marital property subject to division. However, several important rules apply:

The 10/10 Rule: If the marriage lasted at least 10 years and overlapped with at least 10 years of military service, the Defense Finance and Accounting Service (DFAS) can make direct payments to the former spouse. This doesn't determine how much a spouse receives, that's decided by the court, but rather whether DFAS will handle the payment directly. This often-misunderstood federal rule does not determine entitlement to the pension. A spouse may be entitled to a share of the retirement regardless of the marriage length. The "10/10 Rule" simply dictates how the payment is made.

Division Calculations: New York is an equitable distribution state, meaning marital property is divided fairly but not necessarily equally. Courts will consider the length of the marriage, the overlap with military service, and numerous other factors when determining what portion of retirement benefits the non-military spouse receives.

Disability Pay Considerations: Military disability pay presents unique challenges, as it may not be divisible as property in the same way retirement pay is, depending on when and how the disability compensation is structured.

Health Insurance and Benefits

Military families often rely on TRICARE for health insurance, and divorce can affect eligibility. The "20/20/20 rule" allows former spouses to maintain full TRICARE benefits if the marriage lasted at least 20 years, the service member served at least 20 years, and there was at least a 20-year overlap.

Other variations, like the "20/20/15 rule," provide temporary coverage for one year following divorce. Understanding these thresholds before finalizing your divorce is essential, as the loss of military health benefits can have significant financial implications.

Child Custody and Relocation

Military life often involves frequent relocations and deployments, which create unique child custody challenges. New York courts must balance the best interests of the child with the realities of military service.

Deployment: Courts cannot use a parent's deployment or potential deployment as the sole factor in making custody determinations. However, practical arrangements must be made for parenting time during deployment periods.

Relocation: When a military parent receives PCS orders, it may trigger custody modification proceedings. Courts will examine whether the move is in the child's best interest, considering factors like the child's relationship with both parents, educational stability, and the reason for relocation.

Family Care Plans: Active-duty service members with custody or visitation rights should have comprehensive family care plans in place that address what happens to parenting time during deployments or temporary duty assignments.

Support Obligations and Military Pay

Calculating child and spousal support requires a nuanced understanding of military pay structures, including base pay, housing allowances (BAH), and special duty pay. These components can fluctuate, affecting support calculations. Enforcement can also be handled through military channels, including wage garnishment.

Child support and spousal support (maintenance) are calculated using New York's standard guidelines, but federal regulations limit the amount of a service member's pay that can be garnished for support to 60% of their total pay and allowances.

Military Pensions and Survivor Benefits

Beyond the division of retirement pay, service members should consider the Survivor Benefit Plan (SBP). This program allows a portion of military retirement pay to continue to a designated beneficiary after the retiree's death.

Divorce decrees often require the service member to maintain SBP coverage for a former spouse, particularly when they're receiving a portion of the retirement pay. Former spouses can also be designated as SBP beneficiaries by court order. Failing to address this in your divorce agreement can create significant problems down the road.

Special Considerations for New York Military Families

New York is home to several major military installations, including Fort Drum, the U.S. Military Academy at West Point, and various Air National Guard and Reserve facilities. Many military families establish deep roots here even as they navigate the transient nature of military life. Working with an attorney who understands both New York family law and the federal regulations governing military divorces is essential. The intersection of state and federal law in these cases requires specialized knowledge to ensure all your rights and benefits are protected.

Moving Forward

This Veterans' Day, we honor not only those who serve but also the families who support them through the unique challenges of military life. If you're a service member or military spouse facing divorce, know that you don't have to navigate these complex issues alone. Understanding your rights under both state and federal law is the first step toward achieving a fair resolution that protects your future and honors your service to our country.

Contact a Syracuse Divorce Attorney Today

If you're a veteran or active service member of the military and are considering divorce in New York State contact our office today for a confidential consultation with an experienced Syracuse divorce attorney.

For more details the divorce process please visit our Divorce and Frequently Asked Questions pages

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Laws and guidelines can change, so always verify with current statutes or a professional.