Military Divorce

The Divorce process is one can be very traumatic and for many a life-altering event for the members involved. Money and children are usually the main issues in any divorce however; if a spouse is a military service member then pension and military benefits can also be a big issue of concern when seeking a divorce. Unlike a civilian divorce, military couples have more of a complicated process than that of their civilian counterparts.

Military couples generally have a different lifestyle than normal couples that require the military spouse to serve on active duty deployments away from their families, frequent relocations to different service stations as often as every three years, and can deploy to conflict zones for long periods of time. Because of such a demanding lifestyle, the non-military spouse often has been unemployed or underemployed which might mean that the service member is responsible for spousal support after a divorce. In a military divorce both state and federal laws must be considered. While state law oversees divorce proceedings, federal law provides guidance on how retirement pay can be divided and what benefits the former non-military spouse may be entitled to.

Since state law governs divorce proceedings, in North Carolina, for a military service member or non-military spouse to file for a divorce the requirements are similar to that of any one seeking a divorce within the state:

  • The service member or non-military spouse must live in North Carolina for at least 6 months;
  • Be stationed or under government orders to live in North Carolina

However, the main law regulating military divorce is the Uniformed Services Former Spouse Protection Act, (USFSPA), 10 U.S.C. 1408. This law returned to state courts the right to consider military retired pay as property upon divorce and provided a method of enforcing these orders through the Department of Defense. Enacted by Congress in 1982, the USFSPA protects former spouses of military members and permits a direct payment of retired pay (if awarded by the state court) and allows some spouses to retain commissary/exchange privileges, military health care, and designation as a Survivor Benefit Plan (SBP) beneficiary.

Custody and Visitation for the Military Service Member

Child custody and visitation arrangements are usually subject to individual state laws. North Carolina, courts traditionally consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party and makes its findings accordingly.

Basic visitation arrangements for military parents are similar to child visitation arrangements for other parents with a few additional concerns. For example, when military parents are developing custody or visitation rights they should keep in mind the age of the child (ren), what will happen when the service member deploys, what will happen when the service member returns from deployment, and what the visitation schedule will be like if the service member transfers out of the state or out of the country.

When a military parent is transferred either out of state or overseas or a non-military parent decides to move away from the military parent many weekly visitation appointments may not be possible. In circumstances like these the custodial agreement may specify who pays for transportation costs, as well as which parent is responsible for bringing the child to and from airports, train stations, or the bus. Virtual Visitation is usually another course of action for military parents when non-traditional visitation schedules are not an option.

Other visitation options for military parents may include:

  • Assigning visitation hours to a close relative either a parent or sibling of the military parent who may already have a close relationship with the child if it is in the best interests of the child; or
  • Scheduling make-up hours before or after deployment if the parents’ and child’s schedules can help with finding additional visiting hours.

Either option can assist the military parent with visitation hours or judges in some states will allow military parents such flexibility if the parties can agree and it is in the best interest of the child.

Family Support for the Nonmilitary Spouse

Each military branch of service has its own unique policy requiring service members to support family members upon separation in the absence of an agreement or court order. These policies are designed to be short-term measures and that a commander's authority over the military service member is limited without a court order. In order to receive alimony or child support the non-military spouse must specifically request that a civilian court do so. Additionally, an order must be sent to the Defense Finance and Accounting Service (DFAS) from a court or child support enforcement agency that directs the government to pay monies for support or alimony.

Alimony payments can also be ordered by the court and satisfied through a garnishment order submitted to DFAS. The allotment will go into effect 30 days after the notice was sent to the military member by DFAS. You must obtain the garnishment order from a state court with jurisdiction over the military member and provide it to DFAS.

In North Carolina, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. Additionally, when determining the proper amount of child support to be paid, North Carolina adheres to the normal guidelines, worksheets and schedules.

At Arnold & Smith, PLLC our attorneys have years of experience handling divorce and child custody cases in and around the Charlotte region. Contact us now to schedule a consult and have our attorneys review your circumstances and help you determine what options you have and the best way to help you achieve your objectives.

Continue to: Division of Military Benefits and Property and Military Divorce FAQ’s