Military Lawsuit

People who are in the military or married to someone who is often assume that a military divorce is significantly different from a civilian one. It's not. There may be unique issues, like determining which state the divorce needs to take place in if the military spouse is deployed out-of-state. However, spouses can negotiate the terms of their divorce and custody agreements as any couple would, and these divorces are handled in civilian courts.

Misconceptions Around Retirement Pay

One matter around which there is a good deal of confusion is that of how much of a service member's retirement pay (or "retired pay") a spouse is entitled to receive in a divorce. That can be a big chunk of money, and military families count on it. Therefore, it's a primary focus of many military divorces.

The Uniformed Services Former Spouses' Protection Act in 1982 gives state courts the right to treat this pay as it would any other marital asset. If the divorce is handled in a community property state, it's divided 50/50. In an equitable distribution state, which most states are, the only requirement, if the matter goes to a judge to decide, is how to divide it and other marital property fairly.

The Role of Civilian Courts

Contrary to popular misconceptions, the length of the marriage alone has no impact on the amount of retired pay the non-military spouse receives -- only on whether it can be directly paid by the Defense Finance and Accounting Service (DFAS). If the couple can't work out the division of the pay on their own with their attorneys, the court will likely look at the length of the marriage, but also at things like whether the spouse gave up a career to be a stay-at-home parent, as many military spouses do. In an equitable distribution state, spouses aren't automatically entitled to a portion of military retired pay.

There are a lot of so-called "barracks lawyers" in the military who think they know about military divorce, but they only spread false information. If you and/or your spouse is in the military or retired from the military and you're considering divorce, it's essential to find a divorce attorney who has experience with military divorces in the state where your divorce will take place.