Being based in the nation’s capital, our firm handles many inquiries regarding divorces that involve members of the U.S. military. These cases can pose a number of special issues.
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Service of Process
One challenge arises when starting a case against an active-duty service member. If a divorce case is filed against a civilian, a sheriff or private process server will typically hand-deliver the divorce complaint to them. This is generally not possible if the defendant is within a military base. In that case, it may be necessary to request that their commanding officer cooperate with the service of process. Each branch of the military (Army, Navy, etc.) has different procedures and regulations surrounding this issue.
Even once a service member has received process, they may take their time in responding to it. The Servicemembers Civil Relief Act (SCRA) makes it time-consuming, and in some cases impossible, to obtain a default judgment against an active-duty service member if they fail to respond to the complaint on time. This can significantly delay the progress of a case. It is sometimes useful to obtain a waiver of SCRA rights in a post-nupital agreement to prevent this from being an issue in a divorce case.
Child Support
The U.S. military has regulations regarding child support, which apply in parallel to provisions of state law and foreign law. So long as there is no court order in effect, a service member can be ordered to pay child support by their commanding officer, and can be disciplined if they fail to comply. However, these orders are up to the commanding officer to enforce, and they are not always strictly enforced, so it is often still necessary to go through state courts to enforce child support obligations.
Pension and Disability Benefits
Most U.S. military members have a defined benefit pension that pays a fixed amount after their retirement. Under U.S. state law, the pension benefits are usually treated as marital property, and can be divided by court order so that the ex-spouse receives a percentage. The Department of Defense can make direct payments to a spouse who was married to the service member for at least 10 years during their service, but in this case, a special pension order must be signed by the court and submitted for processing.
These benefits are often received in conjunction with disability benefits from the Department of Veterans Affairs (VA). Unlike pension benefits, VA disability benefits are generally not subject to division as marital property, due to federal law that supersedes state law. However, disability benefits can be considered as income when awarding child support and alimony. Military benefits are subject to income tax in the US, while VA disability benefits are not.
Service members entitled to both pension and disability benefits must generally have their pension payment reduced in order to receive disability payments. This creates a particular challenge in the context of a divorce, since an ex-spouse who is receiving pension benefits may see those benefits reduced if the service member begins receiving disability benefits. The U.S. Supreme Court ruled in 2017 that state courts cannot order an “offset” of the loss of the pension benefits in this case.
Retirement Savings
Some military members have a Thrift Savings Plan (TSP) account. This is a retirement savings account similar to a 401(k) account, where the service member saves a percentage of each paycheck for their retirement. TSP accounts can be divided by court order as marital property. TSP accounts are often tax-deferred, meaning that a transfer of funds in the account will be taxable (and subject to tax withholding) unless it is made to an IRA or 401(k) account.
Other Military Benefits
An ex-spouse should also consider the value of military health care, travel, and educational benefits. Former spouses may keep certain military benefits if they have been married to the service member for at least 20 years during their service, while children of service members are generally able to keep benefits following a divorce. A properly drafted marital settlement agreement will take these issues into account to the extent they are relevant.