How Long Does a Military Divorce Take?

Military divorces can take longer than a traditional civilian divorce, particularly if a service member is on active duty or deployed at the time divorce papers are filed.

A divorce involving a service member may last from 2 months to 24 months. However, in some cases it can take longer. The service member’s deployment status has the greatest impact on the length of the process.

The state where the divorce is filed, and the lawyer you choose, may also have a significant impact on the length of a military divorce.

Certain military divorce rules may be relevant to the divorce process when one spouse has been:

• a member of the army, navy, marines, space guard, coast guard,
• in the armed forced reserves, or
• in the national guard.

Military Divorces Differ From Civilian Divorces

When one or both spouses are active service members, it can be challenging to engage in the divorce process. It becomes even more fraught when a spouse is deployed. Federal laws have been passed to make divorce fairer for both parties when managing the unique responsibilities of service members.

Federal law (which applies nationwide) lays out certain rules for military divorces, including how to divide military pensions and how to handle deployments. State laws govern the remainder of the divorce process. Applicable state laws will depend on the state where a spouse (acting alone) or couple (acting together) initiates the divorce.

Every divorce can take time. Certain factors contribute to the length of time it will take for service members and their spouses to separate, including:

• Whether the divorce is contested or uncontested
• How cooperative the spouses are
• Whether there is a waiting period for divorce in the state where the divorce was filed

A military divorce can take anywhere from 2 to 24 months on average, depending on the details of each case.

While the procedures associated with a military divorce can be different, at the end of the day, the basis for a divorce is frequently the same. Military couples can have the same issues that civilian couples can have, resulting in the need to end a marriage.

Servicemember Rights in Divorce

Those in the armed forces, reserves, and national guard have certain rights afforded to them under federal law. In the eyes of the law, it is unfair for a service member to deal with legal proceedings while protecting their country. The law does not protect service members from legal proceedings altogether, but it does give them a greater opportunity to handle their legal affairs when they are ready and able.

The Servicemembers Civil Relief Act (SCRA) is designed to ensure that full-time, active-duty service members can focus on their military responsibilities without being unduly burdened by civil legal issues. It gives active servicemembers protection from consequences of inaction that would otherwise result from untimely responses to court proceedings.

When a civilian spouse is served divorce papers, they have a certain amount of time to file their response in court. If they fail to respond, the initiating spouse can ask the court to automatically decide in their favor (this is called a default judgment). If the respondent spouse is in the military, however, they may be unable to file a response within the allotted time. Therefore, the SCRA protects service members from default judgments against them for lack of a response.

Service members can also ask for a stay (a delay or postponement) in legal proceedings while deployed, or within 90 days of their release from active duty.

Where to File for Military Divorce

Service members frequently move around and with little notice, so it can be confusing to determine where to file for divorce. This uncertainty can be used to the advantage of either spouse, as divorces involving members of the armed forces allow for more options. Where the divorce is filed will determine which state’s laws apply to divorce proceedings, and where you should seek an attorney.

Rather than one clear choice, military spouses generally have three options when deciding where to file for divorce:

1. The state where the petitioning spouse resides
   • Residency requirements vary by state, so it’s important to know what your state’s requirements are before filing. Typically, you can file for divorce in the state where you or your spouse have resided for at least six months or in the state where you file taxes. The legal residence of the service member or spouse may differ from their physical residence.
2. The state where the military spouse is stationed
   • This is a physical residence, the state where the service member or spouse is currently living due to military assignments or other reasons.
3. The state where the military spouse claims domicile
   • This refers to the state where the service member maintains their permanent residence and intends to return after completing their military service.

You are allowed to file for divorce in a different state than the one where you and your spouse got married.

If you have trouble determining where you can file for divorce, it’s best to speak to a military divorce attorney in your area for guidance.

How Military Divorce Works

The exact process and timeline for a military divorce depends on several factors, including the state’s divorce laws and procedures, and whether or not the respondent spouse is on active duty or deployed. 

First, the petitioning spouse must determine the state in which you (or your spouse) wish to file for divorce.

Next you or your lawyer can draft and file your petition with that state court and initiate your divorce proceedings. The petition states the basis for the divorce and the outcome sought. Depending on the state, you may need to choose legally recognizable reasons for seeking a divorce (grounds for your divorce) in your petition. In other states, you can ask for a no-fault divorce.

As with a civilian divorce, the spouse wishing to initiate the divorce, the petitioner, must file a petition for divorce with the court. The petitioning spouse will then serve the other spouse, the respondent, with the appropriate paperwork, providing notice. The responding spouse will then file a response with the court.

Once a divorce petition is filed, service members can request a delay in proceedings. If they meet requirements under the SCRA, this grants them a 90-day stay, with additional time if requested and granted by a judge. 

Once the proceedings begin, responses are filed, and the divorce can proceed like any other. Spouses commonly ask the court for temporary orders until the divorce is finalized. These orders can address many key issues in a divorce, including possession of the marital home, spousal and child support, and child custody.

The discovery phase of divorce allows both parties to acquire important information and evidence to build their respective cases. Depending on state law, spouses may need to go to mediation if they’re unable to agree on key matters. You or your attorneys will update the court during this time.

Mediation is a process allowing the couple to work collaboratively to come to a resolution regarding matters such as property division, alimony, and child custody. 

If the spouses are unable to resolve differences together — whether by talking to each other, working through attorneys, or participating in some form of officially-sanctioned mediation — a trial may be necessary.

During the trial, a judge will listen to both parties and their witnesses, and review evidence and documentation before making decisions. 

Once the judge finalizes a decision, the court order is signed officially ending the marriage. Finalizing the divorce does not take longer than it would for civilians, since the divorce process is already underway.

Initiating a military divorce is similar to initiating a civilian divorce. The process may be prolonged somewhat if a non-military spouse wishes to begin the divorce proceedings while the military spouse is deployed.

Unique Guidelines Governing a Military Divorce

In a military divorce, spouses need to address several of the same issues that civilian couples deal with. However, there are additional details to consider when one or both spouses are service members. 

Military Benefits and Pensions

Service member spouses have rights under the Uniformed Services Former Spouses’ Protection Act (USFSPA). This federal law says that state courts may treat retirement pay as either sole or community property. It does not specify an exact formula to divide retirement pay, as this is dictated by state law. The USFSPA does however prohibit a state court from awarding more than 50% of the “disposable retired pay” to a military spouse.

The length of a military marriage plays a significant role in the division of benefits and pensions. Payment of a former spouse’s share of military retirement is presumed if the couple was married for at least 10 years, and as long as that overlapped with 10 years of service in the military. This is referred to as the 10/10 rule or 10/10 test. The spouse who was not named on the pension can receive direct payment of their share of the retirement pay from the Defense Finance and Accounting Service (DFAS), which will be responsible for dividing the pension and sending each party their respective portion monthly.

Former spouses of service members may be eligible for additional resources beyond pensions, including TRICARE medical benefits and commissary privileges, if the following apply:

• The couple was married for 20 years or more
• At least 20 years of military service overlapped with their marriage
• The service member served for at least 20 years which were creditable toward retirement pay

In this case, per the USFSPA, the “20/20/20” rule presumes the former spouse is eligible for full TRICARE benefits as long as they do not remarry or enroll in an employer-sponsored health plan. Likewise, the “20/20/15” rule applies if all criteria are met except for a 15-year overlap between marriage and military service. In this case, the former spouse is eligible for limited TRICARE benefits.

Even if the requirements of these various numerical rules are not satisfied, an ex-spouse may still be entitled to part of a military spouse’s pension. The court will decide whether they believe the non-military spouse is entitled to some portion of the military spouse’s pension. If so, the military spouse will be responsible for providing their ex with regular monthly payments. 

Another important financial aspect of military divorces is the division of the Thrift Savings Plan (TSP) and other investments. The TSP is a retirement savings plan similar to a 401(k) for military personnel and federal employees. In a divorce, the TSP may be divided between the spouses by a specific dollar amount or a percentage of the account balance. To split the TSP account, a spouse must obtain a court order known as a Retirement Benefits Court Order (RBCO).

Alimony and Child Support

Like any civilian couple, military spouses may be entitled to receive alimony. Alimony, or spousal support, is the financial support one spouse gives the other. Alimony is not guaranteed, but a spouse can ask the court to grant it. If a judge decides it’s fair and necessary, they may grant the spouse alimony for a short period or permanently. Spousal support is governed by state law.

If spouses have children, one parent may be eligible to receive child support. Like spousal support, child support is a financial payment one parent provides the other for the care of their child.

Spousal support or alimony is primarily determined by the state where the divorce is filed. Each state has its guidelines and formulas for calculating the amount and duration of spousal support. Factors considered may include the length of the marriage, the earning capacity of each spouse, the standard of living during the marriage, and the recipient spouse’s needs.

Like civilian divorces, child support in military divorces is generally determined based on state guidelines. However, each branch of the military has its guidelines for calculating child support when there is no court order or agreement in place. The Basic Allowance for Housing (BAH) is commonly used as the basis for calculating support.

If a service member’s income or circumstances change due to promotion, demotion, retirement, or other factors, the spousal support order may be subject to modification. Either party can petition the court for a modification of the spousal support order based on a substantial change in circumstances. Military pay can be garnished to enforce spousal support orders, in which case DFAS will withhold a portion of the service member’s pay to satisfy spousal support obligations.

Child Custody

Child custody is one of the most unpredictable parts of a military divorce, especially when one or both spouses are on active duty. Having a solid custody arrangement is always helpful, especially in military divorces.

Spouses (typically through attorneys) may create their custody arrangements if they communicate well and agree. If this is not possible, the judge may intervene and create a custody plan the court decides is best for the child.

Child custody can be termed sole or joint. Getting joint custody is feasible even if one parent is on active duty and gets deployed. In a situation like this, the other parent would take care of the child as long as the custodial parent is away.

Fortunately, a parent’s military status is not enough to determine their eligibility to get custody of their child. Regardless, being in the military with minor children does take much more care and planning, as one or both parents can be deployed at any time. 

In military divorces, child custody arrangements can present unique challenges due to the nature of military service. Deployments, frequent relocations, and the potential for unpredictable schedules can complicate establishing a custody agreement that is in the child’s best interest. However, the primary consideration for the courts remains the child’s well-being and stability. Service members and their spouses should strive to create a parenting plan that considers the demands of military life.

Finding a Military Divorce Lawyer

No divorce is straightforward, but military divorces are especially complex. That’s not to say that the outcome favors one spouse or another – they can go many different ways and involve deadlines and issues beyond what civilian divorces entail.

Lawyers in the Unbundled Legal Help network offer both full representation or “unbundled” representation for limited aspects of your divorce, like choosing a state to file in or responding to an urgent order.