Rights & Benefits of Divorced Spouses in the Military

Rights & Benefits of Divorced Spouses in the Military

October 11, 2016

Divorce between civilians is already a complex process, but military divorce brings a host of other concerns into play. As a family law attorney who has handled numerous divorce matters for military couples, the Edgar & Dow hopes to keep you informed of what you’ll be facing during your divorce process and in your post-divorce life. Having that information can mitigate the costs of your divorce too—both in terms of time, money, and emotional strain.

In general, the military prefers to treat divorce as a private civil matter to be handled by a civilian court. Domestic situations don’t call for command involvement unless there is a complaint, such as a spouse being denied financial support from a service member. In most cases, civilian courts will have jurisdiction—the commander is limited to enforcing the court’s orders.

Why Military Divorce Requires Specialized Legal Experience

Your divorce will largely follow the same steps as a civilian divorce. However, your status or the status of your military spouse may affect some of the issues central to your divorce on a legal and practical level. The procedures and laws that apply to your case would also add some extra considerations—this includes the Uniformed Services Former Spouses Act, the Servicemembers Civil Relief Act, and others.

The following divorce issues are highly affected by military service:

  • Child custody
  • Child and spousal support
  • Certain post-divorce benefits

Servicemembers Civil Relief Act & Divorce

The SCRA is a law that protects a service member’s legal rights at home while they are deployed overseas or relocated away from home. It applies to any active duty member of the armed forces, as well as any National Guard member who is active under federal orders or any Coast Guard member serving in a support capacity for armed forces. Members of Public Health and the NOAA may also qualify for protection under the Servicemembers Civil Relief Act.

Thanks to this law, divorce protections for active duty members empower them to request postponement of their divorce or child custody proceedings. You would just need to demonstrate how your military service would keep you from protecting your legal rights in court. For example, if a spouse wants to file for child custody while you are deployed, a postponement request would prevent any hearing from taking place until you get back and can fairly participate in your hearing.

Again, a judge would need to find that there’s a valid reason to postpone the legal process—but as long as you have a valid reason, you’ll have an automatic 90-day stay, in addition to the time the court grants you. The court will determine if your duties will affect your ability to take or respond to legal action.

Your request must include 3 elements:

  • Written demonstration of how duty affects ability to appear in court
  • The date you would be available to appear
  • Statement from your commanding officer affirming your inability to make a court appearance

Different state courts have different application requirements, so consider consulting with a divorce attorney before requesting a stay of the proceedings. Legal experience could prevent your request from being rejected or completed incorrectly.

Protection from Default Judgments

The SCRA also protects service members from default judgments if they fail to appear in court. Before the judge can enter a default judgment, the other party must provide proof that the absent party is not in the military. Otherwise, the court will appoint a lawyer to act on your behalf in your absence.

If you were deployed and had a default judgment levied against you, you have 90 days from your date of return to apply to reopen the case and demonstrate that you were unable to appear in court at the time.

Eligibility for Military Benefits

If you are divorced from a member of the military, your access to commissary, exchange, or medical benefits will depend on the years your ex spent serving, as well as how many of those years overlapped with your marriage. Maintaining full access to these benefits requires that you meet the standards of the 20/20/20 Rule.

An ex-spouse who meets the 20/20/20 requirements will be granted the benefits under the Morale, Welfare, and Recreation program, provided:

  • They were married to a service member for 20 years or more
  • The military spouse was an active duty member for 20 years or more (qualifying for retired pay)
  • The civilian spouse was married to the military spouse for 20 years of their active duty service

If you don’t meet all the above requirements, you may still qualify for military medical benefits for a year after your divorce is finalized while you transition into a new life. However, you would have to qualify for the 20/20/15 rule. The requirements are the same as above, except the last standard only requires 15 years of marriage overlapping with military service. If you meet this standard, you would continue to receive TRICARE medical privileges for up to a year.

Effect of Divorce on Military Benefits

Commissary and medical benefits aren’t the only military privileges that will affect your life. Below, we’ve outlined other crucial issues for civilians and service members to consider over the course of a military divorce.

Housing on Base or Installation

The installation commander has the authority to evict ex-spouses from military housing, but the service member spouse does not. The law states that your housing must be vacated in 30 days if a service member does not live there or if a service member is the only one residing there. If you’re considering separation, then you will have to find a new place to live within a few weeks.

Healthcare Benefits

We discussed the requirements for full medical benefits above, but divorced spouses who do not meet the 20/20/20 or 20/20/15 requirements can still pay for insurance under the DoD Continued Health Care Benefit Program. This option is available for 36 months after your divorce is finalized, so you can find a new provider.

Spousal & Child Support

All the branches of the armed forces require service members to provide support to children and ex-spouses in the event that a court order is lacking. However, a commander’s authority is limited in this regard, and the service member’s obligation is temporary until a court provides temporary or permanent orders. You can apply for direct payment from the Defense Finance & Accounting Service by sending them a copy of the court’s orders.

Civil Court Matters Require Civil Court Attorneys

For situations involving civil concerns, military members or their spouses should consult with an attorney with extensive experience with military matters. Our vast knowledge of divorce law in California, in addition to military-related divorce regulations, makes the Edgar & Dow a valuable asset to you or your children. We can help you navigate a difficult situation with a firm grasp of your goals and your needs.

Call (888) 251-9618 as soon as possible to let an experienced Riverside family law attorney help you.


The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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