Under the best of circumstances, getting a divorce is an emotional, logistical and financial cluster. If you’ve landed on this post because you’re in the midst of navigating or contemplating getting a divorce while you or your spouse (or both!) are serving in the military, you may have been told that military divorce is even more challenging.
Thankfully, there are great attorneys that have extensive experience working with military families, and you absolutely can find answers to even the most complicated questions. If reading that sentence alone strikes fear because you know you can’t hire an attorney, there are likely options for you as well. Put more simply, there are resources, support, and answers out there, so you can be confident as you move towards your New Normal.
To get you started, we’ve got great tips and a few mindset shifts to help sort through the overwhelm. Read on and rest easier.
OK, first things first. Let’s reframe how you’re thinking about “military” divorce. The easiest way to think about military divorce, from a legal perspective, is that it’s a divorce where one or both of the spouses have a super complicated employer. Logistically speaking, this means that many of the aspects that come with civilian divorce stay the same: Figuring out how to divide your household into two residences, divide up bank accounts, and come up with a parenting plan for your kiddos, if applicable.
The complications that come with military divorce stem from a couple of conundrums that are unique to military service. Specifically, retirement accounts, death benefits, and jurisdiction (the fancy legal term for what state has the right to make choices in your divorce case, and thus where you actually file for divorce).
Before getting into the nitty-gritty of what makes these aspects unique for military families, let’s cover the most important thing…You need a lawyer. One who knows military divorce.
While getting a lawyer is great advice for anyone going through a divorce, for military families it is absolutely essential. Why? Because not knowing the laws surrounding those three complications— retirement, death benefits, and jurisdiction— can cost you big time financially, literally for decades to come.
Regardless of if you are the person filing for divorce (the Plaintiff) or if your spouse is the one who started proceedings (which makes you the Defendant), not knowing how retirement and death benefits in the military works can mean that you forfeit massive amounts of money. You may end up signing over more of your pension than is necessary (or would be granted by a Court) or forego death benefits because an attorney unfamiliar with military divorce doesn’t know these types of annuities exist.
We’re not trying to scare you. Your family is protecting our country, and your financial future deserves to be protected.
Google can be your friend sometimes, but when looking for an attorney with a specific military background you’re going to be better served by marketing sites that make attorneys specify what their particular areas of expertise are. When signing up for website listings like FindLaw, attorneys have to submit keywords that clue website visitors in on what their particular practice areas are. While some lawyers will keep this general, simply putting “family law”, lawyers who have a deeper background in a particular type of family law will flag this in their listings.
Two great websites where you can start to narrow your search are FindLaw and SuperLawyers. Both of these sites have subpages (already hyperlinked in the sentence prior, we got you!) specifically advertising military divorce attorneys. These are self-selected listings, not endorsements from the website, but it will help sort through the general overwhelm that can come from typing “divorce lawyer” into your Google search bar!
Once you’ve narrowed down a few names that seem like they’re a good fit for you, it’s time to get clear on if they really know the ins and outs of military divorce. Do not, I repeat, do not just “take their word for it.” While most attorneys are above board about their expertise, having familiarity with military divorce is different than having a crap ton of experience with it. Many military divorce attorneys are veterans, and a decent chunk of them are retired JAGs. If you can track down one of these folks– or someone who trained under them, like our firm’s founder did— yahtzee! You deserve someone who knows what they are doing,
Regardless of their veteran status, it’s actually fairly simple to suss out someone who knows what they’re doing. You just need to know what questions to ask. Remember, military divorce is divorce with a super complicated employer and has a few universal complications. Any lawyer qualified to handle your case should be able to easily answer questions about these complications. Specific questions to ask, according to the North Carolina State Bar’s Standing Committee on Legal Assistance for Military Personnel include:
It’s Concurrent Retirement and Disability Pay. Any attorney with extensive experience should be able to explain this in detail, and how it may or may not apply to your family’s unique circumstance.
This stands for Combat-Related Special Compensation. Again, the attorney you’re considering should be able to easily explain what this means for your family.
This is a red flag finder question: It’s not called a QDRO! A Qualified Domestic Relations Order is used to divide a private company pension… NOT a military one! The attorney you’re interviewing should be able to clarify that this term doesn’t apply to military retired pay.
Again, another red flag question. Regardless of the length of marriage, retirement benefits may be subject to division by a Court. Your potential attorney should clarify what your rights are vs. what may be beneficial in a settlement negotiation.
The North Carolina State Bar’s Standing Committee on Legal Assistance for Military Personnel has an extensive list of questions that may be helpful to ask when interviewing a potential military divorce attorney. While you don’t need to ask all of them, you should run through at least a few to make sure that you are dealing with someone that actually has the qualifications you need.
If you get a blank stare on any of these, don’t consider hiring that attorney.
We know hiring an attorney is a massive undertaking, financially speaking. And for spouses of service members, who may have been out of the workforce as your family bounced around bases, hiring an attorney may feel completely out of the question.
If this is you, please don’t despair. There are free resources available for you. Two online sources that offer places to start looking for low-cost legal services that are familiar with military divorce are Stateside Legal and Military One Source.
We want you to keep two things in mind when you reach out for low-cost or free (called pro-bono) services that with an important caveat in mind, however: First, some of the free resources are for legal guidance, not legal representation. This important distinction means that you can get general advice to basic questions from an attorney, but not have a lawyer who is “your” lawyer and qualified to make judgment calls about your specific, unique circumstances. Second, keep in mind that some pro-bono legal services available are staffed by recent law school grads. That doesn’t mean they can’t help, but it does mean that getting a good double-check from a seasoned military divorce attorney is clutch.
The solution to both of these complications is to get a good double-check before you start to follow the recommendations you get from free or reduced legal services. You can do this by having an initial consultation with an attorney experienced in a military divorce. Many divorce attorneys will do a low-cost (under $500) consultation. You can get a ton of great information from these meetings to get your case off on the right foot.
The Nitty Gritty: Jurisdiction, Retirement, and Death Benefits
In general, you should file for divorce where your legal domicile is, versus the state where your family is serving. This can obviously be way more complicated than it sounds though! Let’s say you and your husband lived in Maryland prior to joining the service. You guys got married in Cancun on the beach, but your drivers’ licenses are attached to the apartment that you lived in while you were engaged and as newlyweds, before you were stationed in Fort Bragg. You then get bounced to Fort Campbell, then Fort Hood. Despite not technically calling Maryland home, Maryland remains your domicile.
So where do you actually file for divorce? North Carolina? Kentucky? Texas? Or crap, Cancun, where you got hitched?!
Nope, probably Maryland. But that’s a general answer. As with all family law cases, each family’s unique circumstances will play out slightly differently. At the very least, having an initial consultation with an experienced military divorce attorney will help you sort out how to get the ball rolling.
Beyond complications that come from jurisdiction, how the military manages retirement and death benefits is what makes military divorce unique from civilian divorce. The amount of your spouse’s retirement that you’ll be entitled to— or vice versa, if you are the servicemember— depends on the amount of time that you’ve been married during time in the military. The portion of retirement that will be subject to division by a Court, the “marital share,” begins with the wedding or the start of military service, whichever comes later.
If you’ve been married for three years and your spouse is still seventeen years from retirement, s/he is not going to be obligated to sign over half of the pension. If, however, you’ve been serving for nineteen and a half years prior to filing and you’ve been married for that entire time, chances are high that your spouse will be walking away from the marriage with a far larger share, or even half.
In addition to retirement, the military’s survivor annuity—called the Survivor Benefit Plan (SBP)— may be relevant to your divorce case. The SBP can be assigned to a former spouse as part of divorce proceedings. Sorting out what happens with the SBP as you move through your divorce process is absolutely essential to ensuring that you have a clear idea of what you’re entitled to if you are the non-servicemember, or what you are obligated to do for your ex if you are the spouse in the military.
Many attorneys who are unfamiliar with military divorce end up unintentionally overlooking the SBP— it’s not a benefit that has a common sense corollary for civilian divorce, and thus is not something that’s on the radar of even skilled attorneys who are not seasoned to working with service members.
If you’re deployed and your spouse files for divorce, the Servicemembers Civil Relief Act (SCRA) is a federal law that allows the servicemember to request that the Court put the proceedings on hold, through a legal move called a “Stay”. This is a formal way that the Court can press pause on your divorce case. If you genuinely can’t participate fully in your divorce case because of your duties, consult an attorney to see if requesting a stay is a good move.
While no divorce is easy, getting divorced in the military does add some additional complications to the mix. Take the steps to find a seasoned attorney who knows what they are doing, so you can start your New Normal with the resources you are entitled to.
©2011-2021 Worthy, Inc. All rights reserved.
Worthy, Inc. operates from 20 W 37 St., 12th Floor, New York, NY 10018