Understanding the Unique Aspects of a Military Divorce

Unlike standard divorces, which are governed exclusively by state law, military divorces are governed by both federal and state law. Where a military service member files for divorce will impact everything from the division of property between spouses to child custody and child support calculations. Military service members must understand their rights and options regarding their divorce in order to make the best financial and child custody decisions for their situation.

One of the ways that a military divorce differs from a civilian divorce is related to the military pension. Every military service member who leaves the military in good standing will receive some form of pension. The Uniformed Services Form Spouses’ Protection Act (USFSPA) was passed and requires that a pension must be divided in a military divorce specifically according to the state laws where the military member is a legal resident. If a military member gets a divorce outside of that state, that state may not even have the legal jurisdiction or authority to make any kind of determinations regarding that pension.

Any custody rights regarding children and parenting plans are developed in the state family court in which the divorce takes place, and therefore the state rules will apply. It is critical that both spouses examine these different laws of different potential venues closely.

Additionally, the state of North Carolina was one of many states that legally adopted the Uniform Deployed Parent Custody and Visitation Act. This law changed the way that service members would be allowed to handle their child’s care while they were on active duty or deployed. This federal bill which was passed by North Carolina provides more choices and options for military service members regarding who will take care of their children while they are deployed. This law states that while a military service member is deployed, they have the right to select the person to watch their child in their place, and it does not have to be a family member or relative of the child.

Military members deserve our respect as a nation, and they face hardships while they are called to active duty or are deployed. They have the right to make decisions for their children even while they are away, including who will watch their children in their place. This is a way that the courts can treat our military service members fairly and have their wishes honored while they are serving our country.

Some disadvantages or concerns regarding this law are that a military service member may pick someone who is a distant family member that the child does not know, or simply a friend. In other cases, a military service member may pick a new girlfriend or boyfriend to watch their child. The spouse who is not in the military will have to share their time with the minor child with a possible stranger. Additionally, questions continue concerning this area of the law such as: Will the non-custodial person have the right to access medical records, make decisions regarding education or medical care, or make the decision not to take them to an activity? Time will tell if any additions or modifications are made to this law.

If you are considering getting a divorce and one spouse is in the military, there are three different venues that will be available to you in a military divorce. It is critical that both spouses take the time to seriously investigate the laws in these different states, as it could directly impact the amount of child support, spousal support, and property division determined in a divorce. The three venues include the following:

• The actual state where the military service member is stationed presently.
• The state where the military service member has legal residency.
• The state where the non-military service member spouse currently resides, if different from the military spouse.

If you are considering a military divorce in North Carolina, you should consider how your assets and property, as well as your child custody arrangements, will be handled in any of the different venues available to you. Contact an experienced divorce attorney to help you understand all of your legal rights at Arnold & Smith, PLLC at 704.370.2828 or online today for your initial consultation.