Whether you are a member of the armed services or the spouse of a service member, you may face specific issues in the divorce process that are different from those faced by civilians. It is important to know what you are entitled to and choose an attorney who is well-versed in the issues facing military families.
One of the first considerations will be whether Tennessee has jurisdiction over you and/or your spouse and your marriage to grant you a divorce. Divorce jurisdiction in Tennessee requires that one or both spouses reside in Tennessee for at least six (6) months immediately preceding filing the Complaint for Divorce. This means you must actually live in Tennessee before filing the divorce in this state. The state or city that the military considers your home or your residence does not always bestow divorce jurisdiction on the state of Tennessee. Unfortunately, this may mean that if your duty station is overseas or out of state, you may not be able to file for divorce in Tennessee. If you are uncertain whether Tennessee has jurisdiction to grant your divorce, you should contact an attorney for guidance.
If the service member is deployed at the time the divorce is initiated or is deployed while a divorce or other proceeding is ongoing, he or she may be entitled to certain protections based on the Service Members Civil Relief Act (SCRA). The SCRA protects service members on certain duty statuses from default judgments in civil litigation, which would include a divorce action. The SCRA also provides many other protections and can operate to suspend a civil proceeding. The plaintiff (the party who files seeking the divorce) must disclose either by affidavit or in their sworn complaint for divorce that the other party is a member of the U.S. Military.
If you are the spouse of a service member and/or you have children with a service member and that service member has abandoned or failed to support you and/or your children, every branch of the military has provisions requiring the support of dependents by the service member. You may be eligible for support without the need of a court order. The support amount is usually based on a differential amount of the service member’s BAH or a percentage of pay. These regulations do not allow for the military command to divert the service member’s pay to the spouse, but if the service member fails to pay support, he or she could be punished under the Uniformed Code of Military Justice. Alternatively, you may obtain a court order for support either through filing a Complaint for Divorce or a Petition to establish child support. Court ordered support, in many situations, can be withheld from the service member’s pay.
Child custody and visitation schedules may be complicated by the service member’s overseas duties, deployments, or just by distant duty stations or frequent relocations. It is important to note that recent legislation in Tennessee, the Uniform Deployed Parents Custody and Visitation Act, created certain additional protections for deployed parents.
Military retirement benefits can be divided in a divorce, even if the service member is not yet eligible for retirement. The Uniformed Services Former Spouses Protection Act (USFSPA) allows for military retirement to be treated, in whole or in part, as a marital asset and to be divided in divorce. The division of the retirement pay is within the discretion of the state courts deciding the divorce and the USFSPA provides the requirements that the court order must follow to successfully divide the retirement benefits.
These are just a few of the myriad issues that divorcing spouses may face when one or both of them are members of the military. If you find yourself facing a military divorce, it is important to find an attorney familiar with these and other issues that face military families. The attorneys of Collins Legal have experience with military families and their specific needs. Contact Collins Legal today for a consultation.