Military Service and Divorce

Every divorce is different because every family is different.  Each family has its own issues for a judge to decide, which may range from asset and property division to determining a proper parenting time schedule for the parties’ children.  Despite these differences, the same rules apply to these families, but where one of the spouses is in the military, there are additional rules and protections that may apply.

The Soldiers and Sailors Relief Act is a federal law that protects active duty military members from being held in default in certain lawsuits, such as divorces.  If a military member is served with a petition for divorce, he or she can request that the proceedings be stayed, or “paused,” if the service member can demonstrate that the military service materially affects his or her ability to respond to the case.  The reason for this law is to prevent vindictive spouses from being able to cause a default divorce judgment while the military member is deployed or assigned to duty out of state.

In addition to Soldiers and Sailors Relief Act, the federal government has also enacted the Uniformed Services Former Spouses’ Protection Act.  This law discusses how military retirement benefits are divided upon divorce.  The act does not override Minnesota law in terms of what the spouses may be awarded in terms of a portion of the military member’s pension.  Instead, it provides that the spouses must have been married for a certain number of years and those years must overlap the active service of the military member before the Department of Defense will assist in enforcing the state order.  The act also recognizes the problems that may accompany domestic violence.  The act provides that a court order awarding child support to the child where the other parent has died as a result of a service member’s misconduct may be enforced through the act.  Furthermore, where the service member loses a right to the pension after reaching pension age by virtue of abuse, the abused spouse may still be the recipient of benefits under the act.

In terms of division of assets and debts, the divorce will function like any other divorce.  A Minnesota court can still make an equitable division of the marital assets and debts.  Even if the USFSPA will not function to provide enforcement of division of a pension through the Department of Defense, a Minnesota court is not barred from granting a portion of the pension to the other spouse.

We have extensive experience with assisting military members and their families with family law cases.  Call us today for a consultation.

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