Divorce is already a complicated process. When one of the spouses is an active member of the military, however, the process slightly changes and can become even more convoluted. It is important to have a firm grasp on some of the potential issues in a military divorce.
The first step in any divorce is, of course, the initial filing of the divorce papers. In cases that do not involve a military spouse, at least one of the spouses must be a resident of New Jersey. These rules are slightly different when a military member is involved. In those cases, either the service member or the spouse to file in one of three places: 1) the state where the spouse resides; 2) the state where the service member is stationed; or 3) the state where the service member claims legal residency. New Jersey allows the divorce to be filed where the service member is stationed even in the event that neither the service member or the spouse are residents of the state of New Jersey.
he timing of the filing and whether the divorce can go forward immediately is also governed by a federal statute called the Service Members’ Civil Relief Act. This law provides protection to a member of the military in certain types of civil law suits, including divorces. If a service member’s military service would materially affect his or her ability to defend a lawsuit, the court may stay the proceedings until the service member is able to participate. For example, if a service member is deployed out of the country and therefore is unable to respond to a divorce pleading or appear to prevent a default judgment, a court may stay the divorce until after the service member returns or is otherwise able to defend the suit. This does not mean that the service member may forever prevent the divorce, only that the divorce will be delayed for a time.
The military also has special rules when it comes to division of military pensions and continued receipt of military benefits for the non-military member former spouse. In cases where the marriage has been at least ten years, and those ten years overlapped with ten years of the military member’s service, then the receiving spouse may be entitled to receive their payment of the military member’s pension directly from the government. Moreover, if the spouse’s marriage was at least 20 years, and those 20 years overlapped 20 years of military services, then the divorcing non-military spouse may be entitled to continue to receive health care benefits or PX/BX privileges. Contrary to a common misconception, military law does not require that military spouses be married for at least ten years before being eligible to have a military pension divided.
Clearly divorces involving a spouse in the military create special problems and present unique issues. You need an attorney who is experienced with these types of divorces. Contact us today at (732) 479-4711 to talk about strategy and your divorce.