Military divorces can differ from civilian divorce cases in many instances and it is important that the lawyer you choose be familiar with the special circumstances of military divorce. These include (but are not limited to): domicile or residence requirements for filing, obtaining service upon an active duty spouse, compliance with military rules and regulations and the division of the military pension (often the largest asset). Additionally, the lawyer needs to understand the military’s sensitivity to allegations of adultery that is not a factor in civilian court. There are many other factors that differ when one of the parties is a member of the military.
Below are some general topics. However, for more information, please check out our free legal guide that includes information on child support and spousal support for military families, military pensions, survivor benefit plans, servicemembers Group Life Insurance, and military pensions/SBP coverage.
Can Service Members File For Divorce In Washington State?
Most service members have been married in one state and have lived in several states or countries. Washington law requires that at least one of the partners to the marriage be a Washington resident for at least 90 days before filing the divorce action.
Custody/Visitation In Military Divorce
Military life – with TDY’s, deployments, and often long work hours – presents great obstacles to the single military parent. That’s not to say that a parent on active duty cannot gain custody. The Court will look closely at each parent’s demonstrated ability and willingness to care for the child. A mere desire to live with one’s child(ren) is not enough. The Court will not consider whose “fault” the divorce resulted from, but will seek custody arrangements that are in the best interests of the child. For a service member who is married to a civilian to seek custody over the other party’s wishes, he or she must have, at the very minimum, a clear plan for how the child will be cared for in the context of military life.
With regard to visitation in a military divorce, the familiar formula for a non-custodial parent visiting the children “every other weekend” seldom works after PCS; because of this parenting plans in military divorces must be tailor made to fit the families’ circumstances.
Military Divorce & Base Housing
If the service member no longer resides in quarters, his family must move off base. The family is provided time to move but will probably have to pay for the move itself. Once the member takes definite action (e.g., renting an apartment or filing a divorce action), a termination letter should be sent to the housing office.
Basic Allowance For Housing (BAH)
The old Basic Allowance for Quarters + Variable Housing Allowance system has been changed to a Basic Allowance for Housing (BAH) system. Consult your military pay office for details. Children still qualify as dependents for setting the BAH rate, even if the civilian parent has custody after the divorce (if the service member pockets the increased BAH and fails to pay child support, he or she may face UCMJ punishment).
How much support must a with-dependent rate BAH-receiving spouse pay to his estranged spouse for spousal and child support? In the absence of a court order, Uncle Sam (in the guise of a unit commander) may require that the service member pay a portion of his check for support. There is significant variation of the amount to be paid. Generally, the minimum amount to be paid would be the difference between the single rate and with dependent rate for the particular service member. Once court action is instituted, the court order will set forth the support amount.