August 11, 2016 | Share
Unique Divorce Considerations for Military Officers and Their Spouses
If you or your spouse is in the military and you are considering a divorce, before you spend too much time researching online, it is important to understand that virtually all aspects of your divorce will be impacted in some way by your family’s military service. From the division of your marital property (including, potentially, military retirement benefits) to establishing child custody rights, there are unique issues you will need to address that do not come into play in civilian divorces.
For an overview of these issues, you can read: Military Divorce in Texas. Here, we go into a few of these issues in some additional detail:
1. How Will the Servicemembers Civil Relief Act (SCRA) Affect My Divorce?
The Servicemembers Civil Relief Act (SCRA) is a federal law that allows for the postponement of civil court proceedings while a servicemember is on active duty. This postponement is not automatic; however, if a spouse who is in the military wishes to delay divorce proceedings, that spouse can seek a “stay” by arguing that his or her service obligations materially affect his or her ability to participate in the divorce. This “stay” can last for up to the duration of the military spouse’s service plus 60 days.
For spouses who are in the military, the SCRA provides important benefits. If you are deployed overseas, for example, it would be understandable if you did not have the time and energy needed to make informed decisions and protect yourself in your divorce. For the non-military spouse, however, the SCRA’s protections can be frustrating – especially if you just want your marriage to be over. Importantly for both spouses, there are limits on when and how the SCRA can be used, so understanding this statute will be an important first step in preparing for your divorce.
2. What Happens to Military Retirement Benefits in a Divorce?
In terms of property division, protecting the right to receive military retirement benefits is usually among the highest priorities for both spouses in a military divorce. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), the Texas divorce courts have the power to treat military retirement benefits as an element of community property. This means that they are subject to division in a divorce. As a result, while non-military spouses are not automatically entitled to receive a share of military retirement benefits, they can typically claim a portion of these benefits during the divorce process.
3. Should I Hire a JAG Lawyer for My Military Divorce?
JAG offers free legal assistance to active-duty military personnel, and this includes assistance with getting a divorce. However, before hiring a JAG lawyer, it is important to determine whether he or she is capable of fully representing your best interests in bringing your marriage to an end. Most JAG lawyers handle a wide variety of legal matters on a daily basis, and they generally do not have in-depth experience with any individual state’s divorce laws. As a result, to protect your rights as much as possible, you should consider at least consulting with a Texas attorney who focuses his or her practice on divorce before making any decisions about your legal representation.
Contact the McKinney Family Lawyers at Nordhaus Walpole PLLC
For more information about what to expect in a military divorce, we invite you to contact us for a free consultation with one of our experienced family law attorneys. To discuss your situation in confidence, please call (214) 726-1450 or contact us online today.
Categories: Family Law & Divorce