Military and Divorce: Things to Consider

Updated: February 20, 2021
In this Article

    Being in the military isn’t easy for married couples and some military families simply don’t make it for a variety of reasons that may have everything or nothing at all to do with military service. No matter what the cause of a divorce might be for a military couple, there are some basic, important issues to consider to ensure the process works out for the best for all involved.

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    The Military And Divorce: Some Basics

    The first thing you should know about getting a divorce while in the military is that you will have to hire your own private divorce lawyer should you choose to go that route.

    You do not HAVE to hire a lawyer depending on the laws of your state and other factors, but should you choose to do so the base legal office CANNOT provide you with legal representation in a civil divorce case.

    Do not count on such help from your base legal office, Judge Advocate General, etc. as it is not permitted. You CAN get advice from the base legal office or JAG about your rights and responsibilities in the divorce under military law–we’ll explore more about that below.

    Adequate Care For Spouse and Dependents Is Required Until You Are Officially Divorced

    The second thing all military members must keep in mind when going through a divorce? No matter what the status of your relationship, as long as your spouse is legally defined as such, the service member is still technically responsible for the support and care of the other spouse, any dependent children the couple has, etc.

    You do not abdicate your responsibility in this area just because you are physically separated, not living together, etc. As long as you are legally married, this obligation exists and your chain of command expects you to live up to it until you are no longer legally obligated to do so.

    That means having a finalized divorce and a legal acknowledgement that the couple is no longer married.

    This has many implications. If you don’t fully understand what they are, it’s best to take advantage of the services your base legal office is permitted to provide you in cases of divorce.

    What services? Advice on your military rights and responsibilities–the legal office team can explain to you what you are required to do, what your options are under the law and the Uniform Code of Military Justice, and more. Getting such a briefing on your legal rights and responsibilities is a VERY good move to make.

    A Note For Military Dependent Spouses

    If you are the civilian spouse of a military member, you have just as much access to the base legal office as the military member does in the context of your divorce.

    The base legal office cannot represent a military spouse in the divorce, but they CAN inform you as to your rights and the responsibilities of the divorcing military member. Yes, you can ask to be briefed on both YOURS and the military member’s, too.

    It makes sense to be as fully informed about these issues from the military’s point of view as you should know what you are entitled to as a civilian spouse even during the divorce proceedings, what benefits you have and which ones will end once you are no longer legally married to the service member.

    And there are many details to know–don’t be misinformed or shortchanged on information. Servicemembers are routinely briefed on their rights and the consequences for not living up to their responsibilities. You, the spouse, should also know what those are if for no other reason than to understand what you are entitled to.

    Amicable Divorce Versus Contested Divorce

    Military divorces work best when both parties can come to an agreement about the important details of the divorce including custody issues where applicable, child support, alimony where applicable, division of property and debt, etc.

    But not all divorces allow the couple to choose across the board. Depending on the laws of the state where your marriage license was issued, you may have state-dictated processes which must be complied with. The more common examples are found in divorces which occur in “community property” states, that is to say states that have specific laws about how the debts and property must be divided in a divorce.

    State law will vary greatly depending on the state but in general, community property laws govern how debts incurred during the legally binding marriage must be divided up. Your state may require you to split these down the middle, an even 50/50.

    Some states may allow the couple to decide on their own how to divide; your state in such cases may require a specific amount or percentage in cases where the couple otherwise cannot agree.

    That is one strong reason to at least attempt to try an agreeable procedure, with both parties trying to compromise and make the best of a bad situation. Some divorces are emotional and involve much in the way of dramatic gestures, angry refusals to cooperate etc. But for those who can get past the emotional part of the process and focus on the details, working things out together without a lawyer or with a minimum of lawyer involvement can work out better for all parties.

    Divorce And Military Retirement Pay, Other Benefits

    When it comes to retirement pay, the laws of your state may have a say in whether or not a civilian spouse is entitled to a portion of the servicemember’s retirement pay or other monies. The service member is legally obligated to faithfully pay any required alimony, child support, or other payments ordered by a court of law. When it comes to retirement pay and related issues, the Defense Finance And Accounting Service (DFAS) official site reminds, “No, there is no Federal law that automatically entitles a former spouse to a portion of a member’s military retired pay.”

    In general, a former spouse must have been awarded a portion of a member’s military retired pay “in a State court order” according to DFAS. A federal law known as The Uniformed Services Former Spouses’ Protection Act (USFSPA) authorizes state courts to divide military retired pay “as a marital asset or as community property”.

    DFAS requires former spouses to formally request payments from a military member’s retirement pay using DD Form 2293, Application for Former Spouse Payments from Retired Pay/ This must be submitted to the federal government along with a copy of the official court order dictating such payment.

    In cases where there is an amicable divorce and the two parties agree to certain payments or other consideration not part of a court order, it’s best to document this in writing, have it notarized at the base legal office (where permitted) or at a notary public’s office, and maintain copies in all records related to the divorce. Such written agreements come in handy later if there is a dispute over the arrangements, especially one that may reach the chain of command.

    Divorce And The Uniform Code Of Military Justice

    Two aspects of divorce that are quite common; the presence of another romantic involvement that has inspired the divorce or romantic involvement that comes while the divorce is underway but not finalized yet. For military members, as long as you are legally married, being involved with a third party runs the risk of violating UCMJ articles.

    There are things contained in the Uniform Code of Military Justice or UCMJ that don’t have a direct, contemporary civilian equivalent. One of these involves the issue of adultery; the UCMJ describes adultery and when it is considered a criminal act or violation of the UCMJ in Article 134. According to the Army official site, there are three things which must be present in order for “adultery” to be punishable:

    • The Soldier must have had sexual intercourse with someone not legally defined as the spouse
    • The Soldier or their sexual partner was married to someone else at the time
    • Under the circumstances, “the conduct of the Soldier was to the prejudice of good order and discipline” or was “of a nature to bring discredit upon the armed forces”

    There are some who complain that such regulations are a throwback to less sophisticated times, or that such UCMJ rules are based on a certain kind of morality that is completely out of touch with modern society. Be that as it may, the UCMJ still has the final say in what is permitted and what’s prosecutable under the law in these cases.

    Army legal experts assert that the safest course of action for a military member experiencing a divorce is to refrain from having sexual relations or romantic entanglements until you are legally free to do so by being “officially” divorced on paper.

    About The AuthorJoe Wallace is a 13-year veteran of the United States Air Force and a former reporter for Air Force Television News

    Written by Team