|
WHAT IF MY SPOUSE IS IN THE MILITARY? By James H. Allison, Attorney at Law
7737 Olentangy River Road If a divorce action is to be filed and one spouse is in the military, there are three different jurisdictions where one may file for divorce. The first is the legal residence of the military service member which may be the state in which the spouses’ lived prior to the commencement of military service. The second venue is the actual legal residence of a spouse, and the third is the place where the service member is presently stationed in the military. A person in the military does not automatically adopt a new legal residence every time they move to a new assignment in the military. A person in the military may live in one state and be able to claim another state as their legal residence, which often times is the state in which he or she resided prior to entering the military. However, the spouse who is not in the military, does not have the benefit of selecting different jurisdictions on where to file for a divorce. The spouse’s legal residence is often the state in which he or she currently resides. In order to file a divorce action, the spouse must meet the minimum residence requirements of that particular state. However, the spouse in the military or the non-military spouse may file a divorce where the military spouse is stationed, even if neither are residents of that particular state. Service members who have been issued a military I.D. card, cannot revoke the other spouse’s military I.D. card as there are certain entitlements and privileges afforded to the entire family with respect to that military I.D. card. If a service member attempts to destroy or confiscate the spouse’s military I.D. card, he or she may be in violation of the Uniform Code of Military Justice (UCMJ) and be appropriately disciplined by the military. If a divorce is granted, the non-military spouse may lose the military I.D. card unless the parties were married for at least 20 years prior to the divorce and the service member had at least 20 years of military service. If such years of service exist, full benefits, including medical, commissary, base exchange, theater and certain transportation benefits are provided. However, if only 15 years of military service took place during the marriage, only medical benefits are extended to the unmarried spouse for only one year from the date of the divorce. The medical benefits for the non-military spouse are permanently extinguished upon that spouse’s remarriage. Remarriage also affects survivorship rights if a non-military spouse is a beneficiary under a survivor military benefit plan. A non-military spouse’s remarriage may not affect the benefits that the spouse is to receive in a share of the retirement pay if it is awarded to the non-military spouse as part of a property division in the Divorce Decree. If the parties were married for at least 10 years, a court can order a division of the military retirement pay benefits. If the marriage lasted for less than 10 years, the military will not make payments directly to the non-military spouse, but will make the payments directly to the service member who will then be court ordered to pay the non-military spouse’s share directly to that person. Only in those cases where the marriage existed for more than 10 years, can the military make payments of military retirement pay directly to an ex-spouse. Persons in the military who are served with papers filed in a divorce proceeding, have special protections afforded to them by the Service Members Civil Relief Act found in 50 USC Section 521 whereby the military spouse is prevented from being considered to be in default for not responding to a divorce proceeding. The military spouse must make the court in which the action was filed aware of the military spouse’s active duty in the military and may hire an attorney to petition the court to delay the proceedings for a sufficient amount of time to allow the military spouse to obtain active representation in the court case. However, it may be much to the military’s spouse’s advantage to move the case forward as quickly as possible rather than continue to allow part of the military spouse’s retirement pay to increase while the divorce action is pending. |