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What restrictions apply to military divorce?

Couples undergoing a military divorce must contend with federal laws in addition to New Mexico statutes. Service members receive federal legal protections that are not afforded to civilians.

A legal proceeding may be delayed, at the court's discretion, for the time a servicemember is on active duty and for 60 days afterward under the Servicemembers Civil Relief Act. The law also prevents active duty personnel from being held in default or penalized for not responding to pleadings and other matters in a divorce proceeding.

Service personnel, however, should not ignore legal documents they receive and should notify the court of their assignment. An attorney should also file a motion asking the court for a delay. Even if a stay is granted, there will be a time when the case proceeds through court.

If the end of the marriage is imminent, a member of the military may want to expedite the divorce. For example, the value of the military retirement that their spouse will claim increases with the passage of time.

The Uniformed Services Former Protection Act also contains conditions where a state court may assume jurisdiction over military retirement benefits. A court cannot treat disposable retirement pay as community property unless the court has authority over the servicemember because of their residence or domicile or where the servicemember agrees to jurisdiction. This jurisdiction cannot be based upon the member's military assignment unless they otherwise reside in that state.

Accordingly, a court where the servicemember is stationed can probably divide that member's military benefits if that spouse started the divorce action. Where the other spouse began the action, the USFPA probably protects the pension from property division in that state.

The USFPA also contains a 10-year rule which restricts the Defense Financing Accounting Service from paying benefits to the former spouse. This does not limit state courts from awarding a portion of military pay to a former spouse regardless of the marriage's length.

When the DFAS does not directly make payment to the former spouse, service personnel must pay the former spouse directly. This is usually limited to retirement benefits earned during marriage.

An attorney can help spouses comply with the laws governing these divorces. They can help assure that they have an opportunity to pursue a fair and reasonable decree.

Source: The Balance, "Military divorce and separation/Congressional protections for service men and women," By Erik Bjornson, Accessed Oct. 17, 2017

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