New York

Military Divorce

Military Pension 

Child Support

Survivor’s Benefit Plan

Divorce in the Military

When you’re considering divorce in the military, your most pressing issues are money and children. Due to the nature of life in the armed services, military divorce differs from civilian divorce in various ways, and these differences affect how the courts arrive at decisions regarding your divorce. Service members involved in military divorce also receive specific protections under federal law.

Where Will You File For Divorce?

Even if your spouse or you are stationed overseas and residing in a foreign country, getting a foreign divorce is not a good idea. It can complicate your situation because U.S. courts may not recognize a foreign divorce and the legal systems are different.

When filing for military divorce in the U.S. you can file:

  • In the state where the military service member is currently stationed.
  • In the state where the military service member has legal residency.
  • In the state where the non-military service member resides.

How Do Federal Laws Affect the Timing of Your Divorce?

When being served with divorce papers, an active duty military member has protection under the Servicemembers Civil Relief Act (SCRA). Civilians have time limits to respond. However, protections under the SCRA include:

  • Granting a “stay” or postponement for civil or administrative proceedings when the service member is unable to attend due to active duty.
  • Granting protections from default judgments for failing to respond to a lawsuit or appear at trial.

What Other Federal Laws Affect Spouses Who Divorce in the Military?

The Uniformed Services Former Spouse Protection Act (USFSPA) provides benefits to former spouses of military members when they qualify based on the 20/20/20 rule. The 20/20/20 rule is: 20 years of marriage prior to divorce, 20 years of military member service, and 20 years of marriage during the member’s retirement-creditable service. Benefits include medical, commissary, exchange and theater privileges under the Morale, Welfare and Recreation Program. Also, under this law, states can classify military retired pay as property, rather than income.

Military Pension Divorce —What Are Divorced Military Spouse Benefits?

If an ex-spouse receives a portion of the Survivor’s Benefit Plan (SBP), then if the service member dies, the spouse can continue to receive pension benefits. However, pension benefits would end upon death if the former spouse were not receiving SBP benefits.

When filing for military divorce in the U.S. you can file:

  • In the state where the military service member is currently stationed.
  • In the state where the military service member has legal residency.
  • In the state where the non-military service member resides.

How Does the Survivors Benefit Plan (SBP) Affect Pension Benefits?

Based on the USFSPA, courts can grant as much as half of a service member’s pension to the ex-spouse as part of divorce. The finance center can’t dispense more than half. However, courts can grant more, but the service member would have to pay it directly to the ex-spouse.

How Does Deployment Typically Affect Custody Rulings Based on the Best Interest of the Child?

Because the courts base child custody on the best interests of the child, when a military service member is deployed for long periods of time, it is often difficult for that parent to be awarded primary custody. However, New York law provides that whenever the absence of the parent due to active duty ends and the parent returns, the court would consider this a substantial change in circumstances. Furthermore, courts may consider modifying a custody judgment, if it is in the child’s best interests.

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