If either you or your spouse are in the military, any type of divorce will be more complicated. Various federal laws must be considered, primarily concerning: notice to the other party; maintenance and child support; the distribution of retirement and other benefits; what information must be included in any final judgment; and, what forms must be submitted to the military. For the spouse of the service person, this will also require some negotiation to compensate for the loss of certain benefits, including the Survivor Benefit Plan (SBP). This applies if either or both parties are on active duty, in the reserve, or retired from any of the following.
1. U.S. Air Force
2. U.S. Army
3. U.S. Marine Corps
4. U.S. Navy
5. U.S. Coast Guard
6. U.S. Public Health Service
7. National Oceanic and Atmospheric Administration
In such a situation, it is strongly suggested that you find a lawyer who is familiar with the special problems encountered when one or both parties are in the military. All branches of the service offer some form of legal assistance (such as the JAG office), but you may also wish to check with your local bar association referral service for an attorney who has experience with divorces in military families. The two federal laws that have an impact are the Service members Civil Relief Act (SCRA) and the Uniformed Services Former Spouses’ Protection Act (USFSPA). Each of these will be discussed briefly, but they are extensive sets of laws with a complexity that requires an experienced lawyer to fully evaluate.
The Service members Civil Relief Act (SCRA) was signed into law in 2003, making substantial changes to the Soldier’s and Sailor’s Civil Relief Act (SSCRA) of 1940. The general purpose of this act is to protect active duty members and their dependents from suffering legal disadvantages as a result of being in the service. The SCRA applies to all types of civil (as opposed to criminal) legal and administrative proceedings. As it relates to divorces, the more significant provisions require that a court appoint an attorney for an active duty member before a judgment can be entered, that the proceeding can be delayed for a minimum of ninety days in certain circumstances, and that certain forms be filed to show the court whether the defendant or respondent is in the military. Although the use of videotaped testimony, the required granting of leave, and the availability of pay records may make a delay of proceedings unnecessary, there are still legal procedural steps that must be followed, which are best handled by a knowledgeable attorney.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows for the distribution of military retirement pay to a divorced spouse. The calculation of the amount the spouse is to receive can be complicated, and the law is not applied uniformly from state to state (or from court to court). The law also provides for limits on the awards of maintenance, child support, and retirement benefits, as well as for methods of enforcing court orders. All of this requires an experienced attorney to protect the rights of both parties.
