Divorce is a difficult process both emotionally and legally. The legal issues, financial issues, and other decisions you will face during the process can be overwhelming. You can reduce your stress and save time and money by understanding the process of military divorce. The best first step is to hire an experienced Oklahoma military divorce attorney. Obtaining the assistance of an experienced military divorce attorney will prepare you for the journey ahead and provide you peace of mind through the process of your military divorce.
Military Divorce Laws: State and Federal
Oklahoma state family law and Oklahoma court procedures will dictate the process of your military divorce; however, unlike an Oklahoma divorce involving two non-service members, military members that face divorce have federal laws and regulations that must be taken into consideration.
Oklahoma law dictates the process for seeking child custody, visitation, child support, division of property and debts, and support alimony. Basically, all the major aspects of a divorce, i.e. children, property, and debts. However, Oklahoma law does not govern the division of military specific assets. Federal laws and regulations dictate the division of military retirement, survivor benefit plans, military medical benefits, and a variety of other military specific interests in divorce.
It is important to understand the governing laws and regulations for the specific issue or issues in your military divorce, so you can be prepared to seek the outcome you desire in your case, under the laws that apply to the issue in your military divorce.
In short, the aspects of divorce common to everyone in Oklahoma are governed by Oklahoma family law and the aspects of divorce specific to a military divorce are governed by federal law and federal regulations.
Military Divorce Process
The military divorce process may be complicated by service obligations, including or deployment; however, the process is the same as a civil divorce process. The greatest difference between a military divorce and civilian divorce is the interests at stake, which are governed by military regulations and federal law.
In a military divorce or civilian divorce, one party, the Petitioner, files a petition for divorce, which states his or her desired outcome in the divorce process. The other spouse, the Respondent, will file an Answer and Counter-Petition, which states his or her desired outcome in the case.
The parties may seek temporary orders in their case to govern issues until the divorce is finalized. The parties may reach an agreement or mediate unresolved issues in their divorce. Subsequent to mediation or if the parties are unable to reach an agreement in their military divorce, the divorce court will hold a divorce trial and decide all the unresolved issues in the military divorce.
Service Member Rights in Military Divorce
The Service Members Civil Relief Act (“SCRA”) provides a variety of protections to service members facing the complete span of civil legal processes. The SCRA provides protections in military divorce to active duty service members as well. In divorce when one party, the Petitioner, files a divorce and serves their spouse with the Petition for Dissolution of Marriage, the other spouse, the Respondent, is required to file an answer in the divorce case.
However, in the case of an active duty service member, if the service member is unable to respond or appear due to a service obligation, he or she is protected from a default divorce decree or other negative consequences in the military divorce process pursuant to the protections provided under the SCRA.
The SCRA specifically provides for “stay” or postponement of any civil court or administrative court proceeding, including a divorce proceeding, if the service member presents evidence that he or she was unable to respond in the statutory time, based on a duty obligation.
This protection does not allow a service member at his or her duty station to simply avoid participation in the divorce process. Rather, it is a protection for service members on specific orders, including national disaster response, overseas military duty, and other types of orders that remove them from their home station.
SCRA Application to Reservists
The SCRA generally protects a spouse in a military divorce that is or will be on active duty in the immediate future. These protections apply to both National Guard service members and Reservists. The family law court will postpose or suspend substantive hearings in your military divorce, if your service obligation qualifies for the protections afforded under the SCRA. The Oklahoma Militia Code, Title 44 of Oklahoma statutes adopts the SCRA and Uniform Services Employment and Reemployment Rights Act at OKLA. STAT. tit. 44 Section 44-208.1
In 2019, the Oklahoma Supreme Court decided the case of Kohler v. Chambers, which limited the application of the SCRA and other military protections to specific service obligations or orders that Reservists are called to serve under. You may read my article published in the February 2020 edition of Oklahoma Bar Journal by clicking the link below:
A Soldier’s Rights and the Oklahoma Relocation Statute
What Happens if Overseas Spouse Never Answers Divorce?
In most cases, if your spouse fails to answer your petition for divorce by the statutory deadline, which is only twenty (20) days in Oklahoma, you may seek a “default divorce” or a divorce from the Court without input from your spouse. When a default divorce is granted, you typically receive exactly what you wanted in the divorce and the other party, your former spouse is obligated by Court Order to abide by the terms of the divorce decree you presented to the Court.
However, in the case of a military divorce, the Court must stay proceedings until the military service member is able to return and answer your petition for divorce or the Court in some circumstances will appoint a lawyer to represent the service member’s interests. In most cases, the Court will stay entering a final order or default divorce, as service members can return home on leave or at the conclusion of their overseas tour to respond to the divorce proceeding.
Service Members and Appearing in Court
A service member may waive the protections under the SCRA and may waive his or her entry of appearance and opportunity to file an answer to the divorce petition. In many cases, the service member may be in agreement with the terms of divorce offered by the non-service member spouse and can benefit from finalizing the divorce prior to deployment.
It is always in your best interest to retain an experience military divorce attorney, even if you are in agreement on terms with your spouse, prior to entering into a divorce decree. You may forfeit rights and substantial financial interests, if you do not ensure the divorce decree is written correctly to protect your interests.
Rights of a Divorced Military Spouse
Generally, the military views divorce as a private civil matter to be addressed by a civilian court. However, military spouses have access to military legal assistance services at no cost through installation legal assistance offices. In a divorce, a service member and dependent spouse will need separate attorneys to advise them to ensure both parties receive independent and confidential advice, and to avoid any conflicts of interest.
20/20/20 Rule for Former Military Spouses
When a former military spouse qualifies for the benefits under the 20/20/20 rule, he or she will receive access to the maximum benefits for former spouses. In order to qualify for the 20/20/20 rule, a former military spouse must meet each of the following criteria:
- The former military spouse was married to the service member for at least twenty years prior to dissolution of marriage or divorce;
- The military member performed at least twenty years of service creditable military service towards the determination of retirement pay; however, the military member does not have to be retired from active duty; and
- Finally, the former military spouse must have been married to the military service member for at least twenty years of overlapping military credible service and marriage.
The Uniform Services Former Spouse Protection Act is federal law, which provides military benefits to a former spouse of a military service member. Any former military spouse that has not remarried and qualifies for the 20/20/20 rule will receive the following benefits:
- Military medical benefits, including healthcare coverage under Tricare;
- Instillation access, including the benefits of the commissary, exchange, and other services that are only on post; and
- Access to Morale, Welfare, and Recreation programs.
Military Divorce Overseas
Foreign divorces create a complicated issue for service members. U.S. courts may or may not recognize a foreign judgement of divorce. Therefore, if possible, it is best to file for divorce in the United States. Family law governing proper jurisdiction to hear a divorce action, as it relates to military service members, allows for the filing of your divorce in the state the service member is currently stationed, the state in which the service member claims legal residency or domicile, and the state in which the other spouse claims legal residency or domicile. The term domicile, means the place or jurisdiction, in which a person intends to remain permanently, which can be contested by the other party.
Child Support against Service Members
All military service members are responsible for supporting their children and their spouse, if they are still married. This requirement includes separated spouses, so long as a divorce decree has not been filed. You may contact your military service member’s chain of command, if he or she refuses to provide BAH and support to you and your children. It is a service requirement and actionable under military justice to fail to provide for your dependents. The military will take the matter seriously, if your spouse refuses to do so.
Do I Need a Military Divorce Attorney in Oklahoma?
Yes, if you are facing military divorce as a service member or the soon to be former spouse of a service member, you need an Oklahoma military divorce attorney. Military divorce is a highly specialized area of family law. The benefits you may or may not be entitled to in a military divorce are very valuable.
The Oklahoma military divorce attorneys at Cannon & Associates are Fierce Advocates for clients facing military divorce. We have over 30 years of military family law experience, helping clients facing military divorce across Oklahoma.
Cannon & Associates: Oklahoma Military Divorce Attorneys
Founder John Cannon is a field grade officer and Judge Advocate in the Oklahoma National Guard. Additionally, John has been recognized as a Super Lawyer and Top 40 under 40 and we knows what it takes to get you the outcome you deserve. Contact Cannon & Associates to protect your rights and fight for your interested in your military divorce. Complete the CONTACT FORM ON THIS PAGE NOW or CALL at 405-657-2323 for a free confidential case evaluation.