Divorce for Active Military Members

A military divorce is one where at least one of the parties involved is an active member of the military. This type of divorce follows many of the same laws as a non-military divorce in South Carolina, but there are some differences. Because active members can be deployed in a moment’s notice, they may be able to receive amendments to some of the laws regarding divorce.

Similarities Between Non-military Divorce and Military Divorce

1.) Fault

In South Carolina, you can file for divorce based on fault or no fault. The divorces based on fault are for:

• Adultery;
• Physical cruelty;
• Desertion; and
• Habitual drunkenness/drug abuse.

The state used to require that all divorces cite a fault in order for the court to allow the divorce. However, this requirement is outdated and no longer necessary now that the state recognizes no-fault divorce. A no-fault divorce is one you can apply for after you and your spouse have lived apart for at least one year. It is called no fault because neither party is seen as responsible for ending the marriage. Military divorces can be filed as either a fault or no-fault divorce.

2.) Division of Assets

A military divorce follows the same division of assets that a non-military divorce. The court divides assets based on equitable distribution, which means marital assets and debts are divided equitably, though not necessarily evenly, among the two parties.

Differences Between Non-military Divorce and Military Divorce

1.) Jurisdiction

Those who file for divorce in South Carolina must meet the established residency requirements: at least one of the parties must have resided in the state for at least one year before filing. If both parties reside in the state, they need only establish residency for three months before filing. A military member, however, can file after he or she has been based in South Carolina for a year, regardless of if he or she plans to continue residing in the state after his or her service period has ended.

2.) Delaying Proceedings

When a party files for divorce in South Carolina, the law requires the other party respond to the complaint within a 30-day time frame after being served. If no response is provided, the court can issue a default judgement in favor of the party who initially filed. But because active military members may be deployed overseas, they are given a longer time frame in which they may respond.

3.) Division of Military Benefits

The Uniformed Services Former Spouses’ Protection Act (USFSPA), establishes two regulations: “First, it authorizes (but does not require) State courts to divide military retired pay as a marital asset or as community property in a divorce proceeding. Second, it provides a mechanism for a former spouse to enforce a retired pay as property award by direct payments from the member’s retired pay. Retired pay as property payments are prospective only.” The act also allows former spouses to enforce other ordered payments, such as alimony, child support, and child support arrears.

4.) Anticipatory Relief

Under the Servicemembers’ Civil Relief Act (SCRA,) an active military member can apply for certain financial relief while on active duty, including alimony and child support payments. A military member paying alimony and child support orders based on pay from his or her civilian job, rather than the wages from his or her active duty pay, he or she may no longer be able to afford that payments if he or she gets deployed and has to leave the civilian job. The SCRA allows military members to apply for anticipatory relief “from any obligation or liability incurred by the servicemember before the servicemember’s military service.” Actively deployed military members who foresee a breach in their obligated duty to pay certain bills such as support orders may apply for anticipatory relief. This relief could allow them to either get the support order temporarily halted or amended to a lower amount while they are deployed. 

Proposed New Changes to Federal Law (And How They May Affect Military Divorce)

Recently, a senator from Oklahoma proposed new regulations regarding distribution of military benefits in a divorce. The federal law currently allows states to award military benefits to a non-military spouse based on the military member’s ranking and years in service at the time of his or her retirement. The new proposal would require states to disburse military retirement benefits based on the military member’s rank and years of service at the time of the divorce. If Congress adopts these new regulations, some military families could see a reduction in the amount they are awarded in a divorce.

The Uniformed Services Former Spouses’ Protection Act (USFSPA) is the federal law that regulates military retirement pay disbursement through divorce. It allows states to consider military pay to be part of a couple’s marital property, but it does not require states to do so. The states that award military retirement pay based on the service member’s rank and years of service at retirement have made this a state regulation. The new language would give federal law the authority over division of military retirement pay.

Senator Russell, who has proposed the language, says he and his supporters are only trying to make sure military members are protected as a thanks for the years of service they put into defending our country. Some who oppose the new language, however, say that military families will be the losers. These families have given years to the military as well, since they are often required to relocate on a frequent basis or endure long periods of time as a one-parent household, since the military member can be deployed for months or even years in a single stretch. 

Contact Robert Clark – a Knowledgeable Family Law Attorney

A military divorce can be a bit more complicated than a non-military divorce. However, if you have a smart, seasoned divorce law attorney in Greenville working for you, you won’t have to worry that important steps are being overlooked. Robert Clark has spent numerous years in the South Carolina family courts; he has the experience needed to help you with all aspects of your divorce. Contact Robert Clark today to see what he can do for you.