Child Support

Military divorces can differ from standard family law cases when it comes to residence requirements for filing, obtaining process service upon an active duty spouse, compliance with military rules and regulations, and the division of a military pension.

While each state may have different laws regarding how divorce and custody cases are to be handled, there are also several Federal laws that govern how soldiers, and their spouses, are to be treated in these cases.

The Uniformed Services Former Spouses Protection Act (USFSPA), a federal statute, governs the calculation and division of military pension benefits in a divorce case. Also, soldiers are provided some procedural protections under the Servicemembers' Civil Relief Act of 2003 (SCRA) which superseded the prior Soldiers' and Sailor's Civil Relief Act of 1940 (SSCRA). The SCRA contained several updates and new protective provisions for soldiers and service members that the Soldiers' and Sailors' act did not contain.

One of the initial questions, if representing the spouse of a soldier in active duty, is how to effectuate service of process. While certified mail service can be used in other cases, it is necessary under Federal law to personally serve the active duty member with a complaint for Divorce, dissolution, legal separation, or annulment, in order for a court to have personal jurisdiction.

Right to Stay of Civil Court Proceedings

50 U.S. Code App. § 202 provides that a state court may, on its own motion, and shall, upon application by a servicemember which meets these criteria, stay the proceedings for at least 90 days:

a. The applicant is in the military service, or within 90 days after it ended;

b. The applicant has actual notice of the proceeding;

c. The application is in writing, and includes facts stating how military service materially affects ability to appear, and a date when the servicemember may appear; and

Background to the USFSPA

The Uniform Soldier's Former Spouse Protection Act (USFSPA) was passed in 1982 to provide financial protection to former spouses of service members in varying degrees based on the length of marriage and length of service. The two main areas of consideration are: (i) the varying levels of entitlement; and (ii) the types of benefits offered to former spouses.

Qualifying Levels - No Qualification

The USFSPA fully governs every aspect of the division of a service person's military retired pay through a military court order. The key to application of the USPFSA in a particular case is whether personal jurisdiction under the USPFSA exists as to the service member. Thus, it is not enough to have jurisdiction in Ohio due simply to the residency in Ohio of the service member's spouse, but there must be appropriate jurisdiction as to the service member as well.

In general, Statutory eligibility for military medical, dental, commissary, and post exchange benefits exists for former spouses in varying degrees based on the length of marriage and service tests. It is notable that former spouses are entitled to the benefits discussed here without any authorization by the Court or the enlisted participant. Thus, they do not have to negotiate with the service person in the divorce to acquire them. In fact, it is doubtful that a state court could limit the former spouse's right to obtain these benefits since the entitlement is pursuant to Federal Statute.