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Why is a Military Divorce Different From a Civilian Divorce?

Updated: 10/24/2022

Est. Reading: 5 minutes

Military divorce differs from, a civilian divorce in more than one way. If you are getting a divorce from a service member one of the questions you ask yourself is, why is a military divorce different from a civilian divorce? One of the ways that divorce is different is when an individual is getting a divorce from their spouse that is an active member of the military they will have to abide by special and unique guidelines that civilians are not subject to.

There are several elements that a military divorce is going to influence and you should consider them. These factors include visitation and child custody, division of military pension, the SCRA (Service Member's Civil Relief Acts), and the place where the divorce can be filed, among other elements.

When you are married to a spouse who is in active military service it will affect your divorce process. Your divorce will be affected even if you decided to split mutually. The active military status of your spouse will affect how you will need to file for the divorce as well as the timeline and outcome of your case.

No matter how complex your case is our divorce lawyer at Jeanne M. Wilson and Associates can help you. We can walk with you during your divorce and ensure that you are well-informed throughout the process.

Does Where You File for a Military Divorce Matter?

When you are a civilian deciding where to file for a divorce isn’t a daunting task. You can file for a divorce right where you live. However, when you belong to the military community it is very common for a couple to be from another state but have been married in another state while living in a different state, and as well be owners of a property in yet another state.

man and woman contemplating their relationship, Military Divorce Different From a Civilian Divorce

The issue of divorce for military spouses becomes even further complicated if the couple has recently been transferred by the military to another state and they have not been living in that state long enough for them to have established residency. The question in most couples’ minds that are in this situation is if it matters where the couple decides to file for a divorce and if it matters the state in which they choose to file for a divorce in. The issue of where they choose to file for divorce matters a lot.

FAQ: How to get primary custody of children during a divorce?

It is important to keep in mind that divorce laws differ in every state and there will be a big difference in how the divorce will proceed in the situation of both parties after it has been finalized. There are states that will not allow the division of the military pension between the spouse and the service member. Even though it would be beneficial for the service member to file for a divorce in these locations their spouse might not allow for the divorce to take place in those areas.

Even in the case of military divorce where both spouses are service members though the divorce will resemble a civilian divorce there will still be a few noticeable differences.

Filing for Divorce in the Military

When you are filing for a divorce in the military you will need to follow different protocols. There are several laws that have been put in place to protect military members to ensure that both parties’ legal proceedings are fair. During a normal divorce when you have been served there is a duration that you are given to be able to respond and in the case where you do not respond on time, the divorce will not be ruled in your favor.

The Service Members’ Civil Relief Act section 521 is there to protect parties in a military divorce and ensure that they are given an equal opportunity to fair divorce proceedings. This section of the SCRA provides parties protection from a default judgment in the case where a party fails to respond to a legal divorce action. The act states that in the case where a service member is away on active duty then the divorce proceedings will be postponed for the duration in which the member will be on service. Also, there will be an additional sixty days after service that will be granted after.

How Civilian and Military Divorce Differ

Issues revolving around military divorce are a bit complex because they are likely to be governed by state divorce laws, federal statutes, and military codes combined. When it comes to determining the distribution or division of military benefits that include retirement and benefits as well as other types of property federal statutes and military laws will act as a guide.

It is important to note that how the divorce will proceed will depend on the laws of the state where the divorce has been filed. Usually, the divorce will be filed in the state where one of the spouses has been living for the required period. The state laws will determine how issues such as child custody and visitation, spousal support, child support, property division, debts, and other divorce-related issues.

Should You Choose Mediation Instead of a Court Trial For Your Divorce?

If you wish to avoid a long and expensive military divorce and your spouse is in agreement with you can opt for mediation. A lot of military service members and their spouses prefer to go through mediation so they can eliminate the traditional trial proceedings. After the couple has filed their divorce paperwork they can be able to meet with a certified legal mediator who will help them through the mediation process. During the process of mediation, couples do not need to hire their own attorneys.

broken heart next to a wedding ring, Military Divorce Different From a Civilian Divorce

The mediator acts as a third party during the process of mediation. As the third party, the mediator helps the couples make decisions on how they would like to settle issues such as the division of assets on any shared property they jointly own, child support, custody matters, as well as divorce issues. A mediator will not make the decision for the couple. The couple makes all of the decisions. The mediator's job is to ensure that process flows smoothly and to help in solving any disputes that may arise while trying to resolve divorce issues.

After mediation has concluded and the couple has agreed to all terms they then proceed to hire a lawyer that can help them to file their divorce documents properly before they present them before a family judge.

FAQ: How long does it take to get a divorce in Colorado?

Why You Would Need a Civilian Divorce Attorney

As an active duty service member that wants to go through the process of divorce, you should be aware that it is a must for your military divorce to be handled by a civilian attorney. Even so, the US military will not provide free legal counsel from the JAG (Judge Advocate General) officers. You will find the Judge Advocate General stationed in every part of the country. You can as well visit the JAG as a non-military spouse. Every spouse should use a different officer so they can avoid the issue of conflict of interest.

A military divorce attorney like Jeanne M. Wilson will be ready to represent you and your lawyer during the divorce proceedings. Our family law attorney has worked with military families before and helped them get settled after a divorce and we can help you too. Call us today!

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