What Laws Are in Place to Protect Servicemembers during Divorce?
Going through a divorce is never an easy process. It becomes even more difficult when you are serving in the military. Being on a military base on the other side of the country – or worse yet, on the other side of the world – will only make matters more challenging. If you’ve been contacted by your spouse that he or she wants to file for divorce, it’s important to understand the laws that are in place to protect servicemembers during such a difficult time in your life.
The Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act is in place to protect those serving in any branch of the armed forces when it comes to divorce. The rights of the servicemember are protected when he or she is on active duty. When divorce papers are served by one spouse on another, the recipient of the papers must respond in a specific timeframe. The law in place offers the following for servicemembers:
- Civil court proceedings can be postponed (through a stay) or an administrative proceeding can be extended
- Protections can be granted for a default judgment if a servicemember fails to appear at a trial or does not respond to a lawsuit
Where can I file for divorce as a servicemember?
If you file for divorce while living overseas as part of the military, you can face a number of challenges. That’s why it’s always best to wait and file for divorce once you are back in the country.
Servicemembers are allowed to file for divorce in the state in which they are currently stationed, in the state where the non-military servicemember spouse currently lives, or in the state where the servicemember has legal residency. Even if you are currently on active duty overseas, it is in your best interest to wait until you return home before filing for divorce as this could only complicate matters.
Military pension division in divorce
If you are planning to file for divorce in Tennessee as a member of the military, or your spouse filed for divorce, it’s important to know how your military pension will be divided. Just like all other pensions, assets, 401ks and other retirement funds, your military pension is subject to division in a divorce. The way it is divided, though, will depend on the length of your marriage, how much you accumulated before you were married, and other such factors.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) gives state courts the ability to treat a military retirement fund as either community property or individual property when handling a military divorce. It may also allow non-servicemember spouses to receive their part directly fromm the government, and to access care at military treatment facilities. Remember, though, that there is no formal guideline or guarantee that you will receive any of your former spouse’s retirement pay. That needs to be worked out during the divorce proceedings.
Divorce presents some challenges for military couples and families. You want an attorney who is prepared to help you move forward. To speak with a Knoxville military divorce lawyer, call LaFevor & Slaughter at 865-637-6258 or complete a contact form found on our website to schedule an initial consultation.
As the Managing Attorney with LaFevor & Slaughter, Jason R. Hines handles new client consultations, strategic planning and implementation and represents clients in all the Firm’s practice areas.
As an attorney practicing law in Tennessee since 2009, Jason has represented clients from all walks of life in a wide range of cases in the State and Federal Courts of Tennessee. His practice areas include divorce, family law and immigration.