Lawyer For Military Divorce in New York, NY

Military divorces in New York are similar to a regular divorce, although there are certain issues that are governed by federal law.

First, divorce proceedings against a military member in active duty can be postponed up to 60 days after the end of a mission under the Servicemembers Civil Relief Act (SCRA).

Second, retirement pay of military personnel is distributed in accordance with federal law, the Uniformed Services Former Spouses’ Protection Act (USFSPA). Availment of other military benefits after divorce are also governed by USFSPA.

Postponement of Divorce Proceedings under SCRA

Under the SCRA, divorce proceedings initiated against a military member in active duty may be postponed up to 60 days after the end of mission. For this reason, a military member who has been served with an action for divorce cannot be declared under default by the court because of SCRA. However, a military member may waive this right by executing an affidavit of service, eliminating the need to be served summons in an uncontested divorce.

Marital Division of Property under USFSPA

UFSFPA defines marital property as property acquired or earned during marriage. As such, the retirement pay a military personnel earns during marriage is considered as marital property.

In cases of military divorce, if the couple have been married for at least 20 years, the military spouse served in the military for at least 20 years, and there is an overlap of the marriage and the service to military of at least 20 years, the non-military spouse can access the same benefits as the military spouse for life, provided they do not remarry. These benefits include healthcare, commissary and exchange privileges, and a portion of the spouse’s retirement pay. This is known as the 20/20/20 rule.

If the marriage does not fall under the 20/20/20 rule but it lasted for at least 10 years with an overlap of at least 10 years of military service for the military spouse, the non-military spouse can receive direct payments of a portion of the retirement pay from the Defense Finance Accounting Service (DFAS). This allows the non-military spouse to receive direct payments from DFAS without the intervention of the ex-spouse, which prevents any interference from the ex-spouse and gives the non-military spouse a legal right to claim directly from the government without the assistance of the military spouse. 

Under the 10-year rule, the former non-military spouse is only entitled to a portion of the military pension, unlike a non-military ex-spouse covered by the 20/20/20 rule who is entitled to benefits such as healthcare and commissary and exchange privileges, in addition to the military pension, for life.

Military Divorce Negotiations

Despite the rules provided by UFSFPA, a non-military ex-spouse may still receive a portion of the military pension depending on divorce negotiations. It would depend on the value of the other marital property retained or received by the non-military and military spouse. However, in this case, the DFAS will not pay directly the non-military spouse the pension. Pension will be released directly to the military spouse, who will then turn over a portion of it to the non-military spouse, in accordance with the divorce agreement.

Other Effects of Military Divorce

Affected benefits upon finality of divorce are:

• Installation Housing. When family members move out due to the divorce, installation family housing will typically be lost.
• Moving Costs. If the non-military spouse lives with the military spouse overseas, the military may be charged the cost of the non-military spouse returning home from an overseas duty station.
• Healthcare. A non-military ex-spouse may buy up to 36 months of temporary health care coverage through the Department of Defense Continued Health Care Benefit Program after losing Tricare benefits due to the military divorce. Eligible children may receive Tricare benefits until 21 years old (or 23 years old if enrolled in college).

Military divorce can be a complex matter because of several federal laws that govern the distribution of marital property in cases when one spouse is in active military duty. Having an experienced military divorce lawyer beside you to help in the computation of the marital distribution will ensure that your rights are protected during divorce negotiations. Should you need assistance, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].