How Are Benefits Divided for Divorcing Service Members? 

Divorce is never easy. The process is even more complicated when a spouse is an active military member. As a military couple, your life begins changing when you decide to separate. Active duty assignments often dictate your housing, your children’s schools, childcare resources, and many other personal and family circumstances. As with every military-connected concern, very specific guidelines affect your benefits and entitlements, and your divorce process.

At The Law Offices of Steven M. Bishop, we recognize the complexities of navigating a legal system governed by both military and state statutes. We understand that the procedures for dividing military benefits are often complex. As a Certified Specialist in Family Law, Attorney Bishop works to protect your legal and financial rights, and he helps you meet each challenge.

Who Has Jurisdiction Over Your Divorce?

Several federal statutes affect whether a California court has jurisdiction over your divorce and related matters.

Filing Your Divorce Petition

As long as your military spouse doesn’t object, you have several filing options. You may file a divorce petition in your state of legal residence, your spouse’s state of legal residence, or the state where your spouse is on active duty.

Responding to Your Divorce Petition

A spouse may file a divorce petition against an active military spouse, but the Service Members Civil Relief Act, 50 USC §§ 3901-4043, sometimes prevents the court from taking further action. If a spouse files a divorce petition and the respondent’s military duty prevents active participation, the respondent doesn’t have to meet the court’s timetable. The court also has no right to issue a default judgment. Once a divorce is final, the military will comply with judgments based on a final decree.

Benefits Entitlement

Child Support and Spousal Support

The Defense Finance and Accounting Office will process child support and spousal support payments in compliance with a final divorce decree. The Consumer Credit Protection Act, 15 USC § 1673, limits the amount the DFAO can deduct from an active military member’s pay. They will deduct 50 to 65% of a military member’s disposable income. The maximum contribution percentage depends on the member’s contributions to all dependents, their percentage of a child’s overall support, and other factors.

Military Retired Pay Benefit

The Uniformed Services Former Spouses’ Protection Act, 10 U.SC., §1408, grants state courts the authority to issue a judgment based on a former spouse’s military retired pay. The award must be part of a property settlement and must be included in a final decree. The USFSPA also grants the Department of Justice the means to enforce a state order.

The 10/10 Rule

A divorced spouse may receive a portion of the spouse’s military retired pay only if they were married for at least 10 years during a period where the spouse had at least 10 years of military service.

The 20/20/20 Rule

An ex-military spouse is entitled to receive medical benefits and commissary and exchange privileges for life or until he/she remarries. This applies only if the marriage lasted 20 years or more, the spouse has 20+ years of military service, and the couple was married for at least 20-years during which the spouse was active in the military.

Military Service Often Contributes to Marital Discord

Members of the military are our heroes, but their marriages often suffer due to active duty separations and deployment in conflict zones. The Department of Defense examines the most common issues through their “Active Duty Spouses Well Being” surveys. The 2017 results show that 20% of military spouses encountered marital issues with 23% experiencing difficulty after the spouse returned from deployment. Of the spouses interviewed, 51% felt a “high level” of stress and 24% reported unemployment as an issue.

Military spouses also reported loneliness, difficulty handling family issues alone, personal and technical problems with spousal communication, childcare complications, and other issues. Sixty percent of responding spouses reported overall satisfaction with military healthcare, income, housing, grocery prices, and community support. Unfortunately, a divorce eliminates or restricts access to these benefits.

Post Traumatic Stress Syndrome causes marital problems as well. The Veterans Administration National Center for PTSD cites PTSD as having “…pervasive negative effects on marital adjustment…” Rates for the disorder vary depending on the military mission. Of those involved in recent engagements, the VA estimates that 11 to 20% suffer from PTSD.

Contact The Law Offices of Steven M. Bishop

Military divorces are often complicated because they are governed by multiple state and federal guidelines. As a Certified Specialist in Family Law, Attorney Bishop provides compassionate service and helps military spouses work through this complicated process. Reach out to us at (619) 299-9780  or complete our Contact Form to arrange a consultation.

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Discuss Your Case With An Experienced Family Law Specialist

To talk to our lawyer about your family law issue in a free telephone consultation, please call our office at 619-299-9780. You may also send us an email. We represent people throughout San Diego County in a host of different family law matters.

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The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation


591 Camino De La Reina, Suite 700

San Diego, CA 92108

Phone: 619-299-9780

Fax: 619-299-0316

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