Military Divorce vs. Regular Divorce in the United States
The divorce rate among military couples is 4.8% compared to approximately 2.5% of the general public. The higher percentage of divorce among military couples is due to younger marriages, extreme financial hardship, rushing in for military marriage benefits, infidelity, stress, and most importantly, deployment. [1]
If we compare military divorces with civilian divorces, there are a couple of similarities as well as differences when it comes to where the divorce is filed, retirement and medical benefits, child custody, and alimony. They are discussed below.
The State Where the Divorce Should Be Filed
Military individuals wanting a divorce should file in the state where they live or where their ex-spouse lives. The court they pick needs to have “jurisdiction” over them, or the divorce will not be valid.
Here are some questions to ask in order to figure out the best state for filing a military divorce:
- Where do you pay your taxes?
- Where did you buy your car?
- Where do you go to church?
- Where do you join community events?
- Where are you registered to vote?
- Where did you get in-state tuition for college?
- Where did you open your bank account?
- Where do you own property?
- Where do you pay real estate taxes?
The state where the military individual got married is not always the right state to file for divorce. The state they live at the time of the divorce might not be the best choice either. A military divorce lawyer should be contacted to pick a state to file in. [2]
Contrary to this, for civilians, getting a divorce is usually easier. Many states ask that one person has lived there for six months to a year before filing for divorce. The state where the person lives when they start the process is the state where they should file. [3]
Retirement Pay and Medical Benefits
The Uniformed Services Former Spouses’ Protection Act lets state courts split military retirement pay as marital property. This split isn’t automatic and must be approved by the court. [4] There are three rules that lay out the distribution: the 10/10 rule, the 20/20/20 rule and the 20/20/15 rule. [5]
- The 10/10 Rule means if you were married for at least 10 years and your spouse did 10 years of military service, you will get any military retirement awarded to you straight from Defense Finance Accounting Service or DFAS. Many people mix up this rule. It does not decide if you get a part of the military retirement benefits. It only changes how you get paid if you get divorced. [5]
- The 20/20 rule in military divorces, found in the Uniformed Services Former Spouses’ Protection Act (USFSPA), lets former spouses keep some military perks if certain conditions are met. If the couple was married for 20 years, the service member served for 20 years, and these 20 years overlapped, the former spouse gets to keep full military medical benefits (TRICARE), as well as commissary and exchange privileges.
- The 20/20/15 Rule says that if the marriage lasted at least 20 years, the service member has 20 years of service that counts towards retirement, and the marriage and service overlapped by at least 15 years, the former spouse can only get TRICARE medical for one year. They do not get the other benefits from the 20/20/20 rule. [5]
In all cases, the USFSPA lets states split military retirement according to their laws. [4]
For civilians, when it comes to splitting retirement money after a divorce, the rules can be different depending on the state. In some states, any property you got while married, including retirement benefits, gets divided equally. But in other places, the property is split in a way that’s seen as fair, based on things like how long the marriage lasted and each person’s money situation. [6]
For splitting up retirement savings like pensions or 401(k) plans, you usually need a special legal paper called a Qualified Domestic Relations Order (QDRO). Also, if the marriage lasted at least ten years, a divorced person might be able to get Social Security benefits based on their ex-spouse’s work, without lowering the ex-spouse’s benefits. [6]
Child Support
According to the Army Regulation (AR) 608-99, Family Support, Child Custody, and Paternity, service members have to support their dependents properly. If they don’t, they can face military punishment. [7]
For civilians, the laws are much more defined. According to Section 228 of Title 18 in the United States Code says that not paying child support intentionally can be a crime in some cases. [8]
For instance, if someone does not pay court-ordered child support for a child in another state, or if they owe more than $5,000 or have not paid for over a year, they can be charged with a crime. This is considered a misdemeanor and can lead to fines or up to six months in jail (18 U.S.C. § 228(a)(1)). [8]
If the child support is overdue for more than two years or the amount owed is over $10,000, the crime becomes a felony. This can result in fines and up to two years in jail (18 U.S.C. § 228(a)(3)). [8]
Also, the law makes it a crime to cross state lines or leave the country to avoid paying child support that is over $5,000 or has been overdue for more than a year. This can lead to up to two years in jail if convicted (18 U.S.C. § 228(a)(2)). [8]
Alimony
Under 42 U.S.C. § 659, it is stipulated that the garnishment of military will pay for the alimony and child support. The implementing regulation is found at 5 C.F.R. Part 581. Under this law, both active and retired military pay can be garnished to fulfill alimony obligations. The Defense and Account Service (DFAS) handles military pay garnishments for alimony. Upon receiving a court order, DFAS withholds the specified amount from the service member’s pay and sends it to the designated recipient. [9]
For both civilians and military individuals, alimony payments are no longer tax-deductible for the payer, and the recipient no longer has to report these payments as income according to (Public Law 115-97, § 11051). [10]
For help with your military divorce, call Sacks & Sacks divorce lawyers today.
FAQs
Q. What is the divorce rate among military couples compared to the general public?
Military couples have a divorce rate of 4.8%, while for the general public, it is about 2.5%. [1]
Q. Why is the divorce rate higher among military couples?
The divorce rate is higher among military couples due to several reasons like getting married young, money problems, rushing into marriage for military perks, cheating, stress, and deployments.
Q. Where should a military individual file for divorce?
A military person should file for divorce in the state where they or their ex lives. The court needs to have authority over them for the divorce to count.
Q. How can a military individual determine the best state to file for divorce?
Think about where you pay taxes, bought your car, go to church, join local events, vote, got in-state tuition, opened a bank account, own a house, and pay property taxes.
Q. Is the state where a military individual got married always the right state to file for divorce?
No, the state where you got married is not always the right place to file for divorce. The state where you live now might not be the best choice either. Contact a divorce lawyer for guidance on where to file.
Q. How is the process of filing for divorce different for civilians?
For civilians, many states say one person must live there for six months to a year before filing for divorce. The state you live in when you start the process is where you should file.
Q. How is military retirement pay handled in a divorce?
The Uniformed Services Former Spouses’ Protection Act lets state courts split military retirement pay as marital property, but the court has to approve it.
Q. What are the 10/10, 20/20/20, and 20/20/15 rules?
- 10/10 Rule: If married for at least 10 years and the spouse served 10 years of military service, the spouse gets retirement pay directly from DFAS if awarded by the court.
- 20/20/20 Rule: If married for 20 years, the service member served for 20 years, and these overlapped for 20 years, the former spouse keeps full military medical benefits, commissary, and exchange privileges.
- 20/20/15 Rule: If married for 20 years, the service member served for 20 years, and the marriage and service overlapped by 15 years, the former spouse gets TRICARE medical for one year but not other benefits from the 20/20/20 rule.
Q. How is retirement pay handled in civilian divorces?
In civilian divorces, the way retirement pay is divided depends on the state. Some states split property equally, others do it based on marriage length and money situation. A Qualified Domestic Relations Order (QDRO) is often needed to split things like pensions or 401(k) plans.
Q. What are the child support obligations for military service members?
Military members must support their dependents as required by Army Regulation 608-99. Not doing so can lead to military punishment.
Q. How are child support laws different for civilians?
For civilians, not paying child support on purpose can be a crime under Section 228 of Title 18 in the U.S. Code, with penalties like fines and jail time depending on how much is owed and how long it’s not paid.
Q. Can military pay be garnished for alimony and child support?
Yes, military pay can be garnished for alimony and child support under 42 U.S.C. § 659, and DFAS handles the garnishments after getting a court order.
Q. Are alimony payments tax-deductible?
For both civilians and military people, alimony payments are not tax-deductible for the payer, and the receiver does not have to report these payments as income, according to Public Law 115-97, § 11051.
Sources:
[1] Bieber, C. (2024, May 30). Revealing Divorce Statistics In 2024. Forbes Advisor. https://www.forbes.com/advisor/legal/divorce/divorce-statistics/
[2] Sanderlin, R. (2021, June 23). Military Divorce: Why Where You File Matters. Military.com. https://www.military.com/spouse/relationships/military-divorce-where-you-file-matters.html
[3] Gjelten, E. (2024, April 8). Basic Divorce Residency Requirements in Your State. www.divorcenet.com. https://www.divorcenet.com/resources/basic-divorce-residency-requirements-in-your-state.html
[4] Defense Finance and Accounting Service > Garnishment > usfspa > legal. (n.d.). Defense Finance and Accounting Service. https://www.dfas.mil/Garnishment/usfspa/legal/
[5] Enable Cookies | USAA | USAA. (n.d.). https://www.usaa.com/inet/wc/advice-military-going-through-military-divorce
[6] Judge, J. P. R. (2022, October 25). How to Split Retirement Accounts in Divorce. www.nolo.com. https://www.nolo.com/legal-encyclopedia/how-to-split-retirement-accounts-in-divorce.html
[7] Citizen’s Guide To U.S. Federal Law On Child Support Enforcement. (2023, August 11). https://www.justice.gov/criminal/criminal-ceos/citizens-guide-us-federal-law-child-support-enforcement
[8] Defense Finance and Accounting Service > Garnishment > childsupportalimony > startpayment. (n.d.). Defense Finance and Accounting Service. https://www.dfas.mil/Garnishment/childsupportalimony/startpayment/
[9] AR 608-99: FAMILY SUPPORT FACT SHEET. (n.d.). In Office of the Staff Judge Advocate. Retrieved August 1, 2024, from https://www.moore.army.mil/mcoe/sja/content/pdf/AR%20608-99%20Family%20Support.pdf
[10] Topic no. 452, Alimony and separate maintenance | Internal Revenue Service. (n.d.). https://www.irs.gov/taxtopics/tc452
