Living military life can be hard, both for the service members and their loved ones. The sad reality is that military marriages are just as likely to end in divorce as civilian marriages. Some of these military divorces are caused by the months or years spent apart by the couples. Despite the number of military divorces, the process isn’t as simple as one would expect. In fact, military divorces can be much more complicated than civilian divorces. You should understand how military divorce works if you are a military service member or a spouse of a service member seeking a divorce. This guide will touch upon the important issues to consider if you are facing military divorce in Oklahoma.
How Military Divorce Differs from Civilian Divorces?
Military divorces and civilian divorces are different in a lot of ways, although they may follow the same progression. The state laws, where the divorce is filed, govern the divorce process in a civilian divorce. For a military divorce, where at least one of the partners is a service member, the process is governed by both state and federal laws. Federal laws that influence a military divorce include the Federal Servicemembers Civil Relief Act (SCRA) of 2003 and the Uniformed Services Former Spouse Protection Act (USFSP). The SCRA and USFSP play a key role in military divorces as they offer different rights and protections to the involved parties, including the non-service member spouse. These federal laws also help to shape the areas of divorce that the state laws may not cover.
Most importantly military benefits and their division are governed by federal regulation, not state divorce laws. Therefore, even if a divorce court in Oklahoma awards you or your spouse a percentage or right to military benefits, it will only be enforceable, if constructed in a manor acceptable under federal regulations. Therefore, it is crucial that you ensure any interests in TriCare, Survivor Benefit Plans, or military retirement is drafted in a way acceptable to the federal agency that handles each of these benefits. This is one of the greatest reasons why it is essential to the success of your military divorce case that you work with an experienced military divorce attorney.
The SCRA, which is a federal piece of legislation designed to protect service members from negative actions based on their military service provides many protections that are applicable in military divorce actions. The SCRA’s protection against filing a default judgment for divorce against a non-consenting service member, which means you cannot seek a default judgement in divorce against a service member that is unavailable due to military service.
Additionally, all divorces require jurisdiction over the subject matter of the dispute and the parties to a dispute. In order for a divorce court in Oklahoma to have jurisdiction over parties to a military divorce, the parties must have “sufficient ties” to the jurisdiction where the divorce court is located. Service members can typically bring a divorce action in three jurisdictions, as opposed to only one being available for citizens.
Important Considerations in Your Military Divorce
The military divorce process and interests to be protected and considered differ greatly from civilian divorces. The following are important considerations of the processes you make take in order to initiated a military divorce as well as the interest and benefits you must consider in order to maximize your outcome and protect your rights in a military divorce, whether in Oklahoma or any state. You must consider retirement benefits, survivor benefits, healthcare, base access, taxes, and many other interests in developing your strategy for seeking a military divorce. It is our hope that the following section illustrates some of the important considerations in planning and handling a military divorce.
Military Divorce Process: A Step-by-Step Guide
Understanding the difference between a civilian divorce and the complexities of a military divorce can enhance your chances of better approaching this process. Below is a brief overview of the military divorce process.
Step 1: Obtain Consent
A military divorce is unlike a civilian divorce wherein one of the parties involved may file for divorce without the other party’s consent. In a civilian divorce, the petitioner (one who has initiated the process and asked for a divorce) initiates the process and serves the respondent (the other party) with their demand. If the respondent fails to reply within the set time, the petitioner can go ahead to obtain a default judgment against them. The judgment may include orders relating to child support, child custody, division of assets and debts, spousal support, etc.
For military divorces, a non-military spouse is prohibited from obtaining a default judgment against their active-duty military spouse. Under 50 U.S.C §3931, a service member can request the divorce proceeding to be paused for 90 days until he/she can participate in the process. However, the court can extend this stay period based on discretion. You cannot exercise this right for any reason, there must be a legitimate military obligation that prevents you from participating in the process. Working with an experienced military divorce attorney will help you protect this interest or stop its abuse, if your spouse is a service member.
As a non-military spouse, there’s a way to get around this roadblock that may potentially drag the divorce process for longer than anticipated. A military member, although away, may consent to the divorce proceedings by accepting the dissolution papers and service of the summons. However, the case cannot go on if the active service member fails to accept or consent to the divorce and does not participate in the proceedings.
Basically, the key here is that the steps to initiate a military divorce requires more than a non-military divorce. You do not want to start the divorce process and be forced to wait six months or longer due to working with an unexperienced divorce lawyer.
Step 2: File for Divorce in the Right State
The state wherein a military divorce is filed plays an important role in the process. Essentially, divorce should be filed in the state where the service member or non-military spouse has legal residency. Determining the state where military families have legal residency can be a problem due to frequent relocation across the country. The residency determination may even be more complicated because the SCRA allows service members to retain their home state as their legal residence.
Non-military spouses may be able to claim legal residency in the states where their spouses (service members) claim as their legal state of residence whether they are present there or not. This is because only one of the parties involved is required to have legal residency in a state before the proceeding is filed. The terms of legal residency vary from one state to another. It is important to speak to an experienced military divorce lawyer to iron out such issues.
Service members or the spouse of service members may bring a divorce action in the following jurisdictions:
- Domicile of the service member: domicile is the place where a party plans to permanently reside, not necessarily where they live currently. Therefore a servicemember stationed at Andrews Air Force Base that is from Oklahoma could file a divorce action in Oklahoma. Conversely, it is possible that a service member’s spouse could file for divorce in the service member’s home state and force the service member to return to contest or handle the divorce in their home state. It is not sufficient to “file taxes in a state” to claim jurisdiction for your military divorce.
- Duty Station of the service member: a military divorce can take place at a service member’s duty station, if they have been assigned there long enough. When a service member is stationed at a military base or on long-term orders in a state or jurisdiction that is different from their home, the court may obtain jurisdiction to handle a military divorce for the parties. In Oklahoma, parties must live within the state for six months and the specific county for 30 days in order for the Court to obtain jurisdiction for a military divorce or any divorce.
In Oklahoma, you can file a military divorce in the district court where you or your spouse that serves in the military is stationed. However, the residency requirements must be met.
Step 3: Knowing Your Rights
Once consent has been given and the right state to file the divorce in has been determined, you need to know your rights. Usually, both the service member and their non-military spouse have rights that protect them individually. Knowing these rights will help you to fight fairly and demand what you are entitled in as part of the marriage and a military divorce. Service member benefits and assets division is often a huge issue in military divorces and far more complex than division of assets in a non-military divorce. These issues can be solved when you have an experienced military divorce attorney fighting for you and representing your interests.
The last think you want is a great Oklahoma divorce attorney that is inexperienced in military divorce and division of military benefits in divorce. He or she may mean well; however, it is highly likely that they will miss an important step or right and you will end up with less than your share of a variety of interests and assets in your military divorce. You can certainly educate yourself and your divorce attorney on military divorce issues and division of military benefits; however, you have paid your divorce lawyer to represent your interests and many divorce lawyers do not know the rules and regulations that govern military benefits, which fall under federal regulation, not Oklahoma law.
In a military divorce, the non-service member may be entitled to some of the service member’s benefits including Basic housing allowance (BHA), medical benefits, health insurance or TriCare, retirement or pension, survivor benefits, and other on-base privileges. A proper understanding of your rights can help to maximize your compensation at the end of the process. You must ensure you work with an experienced military divorce attorney that is familiar with the rights and interests in your military divorce case, as they are very different than a civilian divorce in Oklahoma.
Step 4: Protecting Your Military Benefits
It is not enough to “win your divorce in court” to protect your military benefits. In fact, it matters very little what the divorce decree or order of the Court states. What matters when it related to protecting your military benefits in a military divorce is ensuring that the documentation and language used in your case complies with federal requirements within the varied federal agencies that play a role in division following a military divorce.
The specific language used to divide a portion of a military retirement will either be accepted or rejected by Defense Finance Accounting Service (“DFAS”), the federal agency that handles military pay and military retirement benefits. Our office has handled multiple military divorces and know the specific steps and procedures acceptable by DFAS in order to produce the outcome you and the other party are seeking in your division of military retirement as part of your divorce.
In non-military divorce division of retirement cases, the parties either agree or the Court orders a Qualified Domestic Relations Order (“QDRO”), which is a tool to divide retirement or pension accounts. The QDRO is prepared at the time of divorce and submitted to the agency that controls the specific retirement or pension fund. That agency will put the QDRO order into effect immediately and notify the parties of any deficiencies that need to be resolved. Otherwise, the intent of the parties will be put into effect and the division will take place at the appropriate time.
Conversely, with military division of retirement, you may not know of a problem until years later. You will not receive confirmation from DFAS that the proposed division of military retirement is approved and will be enforced. Therefore, it is crucial that you work with an experienced military divorce attorney that will draft the division of military retirement in a way acceptable by DFAS, so you don’t learn of a rejection or problem years later when military retirement benefit vests and division begins.
Step 5: Seek Legal Help from Experienced Military Divorce Lawyers
A military divorce can become complicated very quickly and in a variety of ways. Sometimes the things you know may change thus putting you in a bad situation. Whether you are a service member or a non-military spouse, a confident and experienced military divorce attorney will greatly increase the chances of your receiving every interest you are entitled to in your military divorce.
Additionally, if you are a non-service member spouse it is even more important that you retain an experienced military divorce attorney, as any problem with legal documents will likely result in your losing an interest, not your former spouse. Military regulations are designed to ensure benefits are received by service members. Therefore, court orders must be drafted in a specific way in order to ensure you receive your share of a service member benefit, as the default is for the service member to receive the interest. By working with an experienced military divorce attorney that has a detailed understanding of what military divorces entail, you will ensure that you protect your rights and interests.
While military members have access to the legal services office on post, these Judge Advocates are not allowed to represent you in court or in your actual military divorce. The legal services office is a great resource on your base, camp or station; however, you will need to retain a private attorney to represent you in your military divorce. Owner and founder of Cannon & Associates is a Judge Advocate in the Oklahoma National Guard and has represented many service members and their spouses in military divorce actions across Oklahoma. Whether it is our firm or not, you must retain an experienced military divorce attorney, especially if you wish to protect your interests in military pension or military retirement during the divorce.
Frequently Asked Military Divorce Questions
Can a divorce be initiated when the service member is on active duty?
Unfortunately, the answer is it depends. A military service member on active duty orders abroad, in a deployed environment, or in support of a natural disaster in another state may be protected by the SCRA from being forced to participate in your divorce proceeding, until they return to their duty station. However, a service member on active duty that is not currently serving in one of the roles stated above can be forced to participate in a military divorce proceeding. Military divorces require consent to proceed when a service member is in a location protected under the SCRA. It may be harder to initiate a divorce when a service member is deployed; however, activity duty service alone does not prohibit a service member from being forced to participate in a military divorce.
What is Subject-Matter Jurisdiction?
Military divorce should be filed in a state where either of the parties has legal residency. Filing your divorce case outside a state where you have legal residency may allow the other party to dismiss the divorce case. Establishing where to file your divorce case in a military divorce can be hard, especially due to the frequent national and international relocation of service members. You may need to contact a military divorce lawyer for help on determining the opportunity jurisdiction. We have helped numerous service member and non-service member spouses identify the right jurisdiction for their military divorce and we hope the information above related to domicile and establishing jurisdiction for divorce is helpful to you.
Is There Alimony, Spousal Support, or Child Support in a Military Divorce?
Yes, the laws of the jurisdiction where a military divorce is commenced apply to military divorces the same as non-military divorces when it pertains to alimony and support. Military regulations are in addition to the rules and protections applicable in state court divorce proceedings. Therefore, a non-military spouse or children will be entitled to alimony, spousal support, or child support in a divorce, just as in a non-military divorce is or is not entitled to support. These payments will be guided by the special rules designed by the military to ensure that service members fulfill their legal support obligations to their families in addition to state law.
We often encounter and help non-service member spouses that are seeking divorce and have a spouse that is unwilling to provide support to them. The military takes this issue very seriously and will take administrative and non-judicial punishment action to enforce a service member provides support to his or her dependents.
We have had much success in contacting service member’s chain of command to enforce the service member provide his or her dependents the support required under military regulations. When a service member attempts to avoid providing support for a dependent, the military will take corrective action to ensure such misconduct stops, whether the service member in at home station or deployed.
Contact: Cannon & Associates – Fierce Advocates™ for Families facing Military Divorce
A military divorce lawyer is an important weapon in your arsenal, whether you are a service member or a non-military spouse. Speak to an experienced Oklahoma military divorce lawyer at Cannon & Associates for legal guidance. Complete the CONTACT FORM ON THIS PAGE NOW or CALL (405) 657-2323 for a free and confidential case strategy session.