Navigating the Complexities of Military Divorce

Filing for divorce when one or both spouses are active duty military can be a complicated process. Several factors must be considered when determining where to file. It is not only necessary to ensure that the state has proper jurisdiction over the divorce process, but it is also important to consider future proceedings after the divorce settlement is finalized, and where each spouse will likely be living at the time. Here we will examine several of the residency issues related to military divorce filings.

Where Can I and Should I File?

As a member of the military, you have three choices where your divorce may be filed:

  • The state where the service member is stationed
  • The state where the service member claims legal residency
  • The state where the spouse resides

There are several factors to consider when deciding in which of these three states to file. While filing in the state where you are stationed is often the most immediately convenient, this can cause problems down the road if neither you nor your spouse plans to reside in or near that state after the divorce or after active duty is completed. When issues such as child custody and alimony are involved, often times there are legal proceedings that take place even years after a divorce, and if the jurisdictional court is nowhere close to the place of residence of one or both spouses, this can obviously be problematic.

It is possible, of course, to file for change of jurisdiction. But if the spouses know where they will likely live after the divorce and after active duty, filing in that state is an option to be considered. This is the type of question which should be discussed with your attorney.

A Word About Retirement Pay


Under the Uniformed Services Former Spouse Protection Act (USFSPA), a military member’s disposable retirement pay is treated like property for purposes of divorce settlements. A judge may divide it or even garnish it for child support purposes.

Additionally, according to a U.S. Navy JAG attorney, under certain circumstances a former spouse may qualify for continued military medical benefits, either for a period of one year or even permanently. Those qualifications are as follows:

The USFSPA also permits former spouses to continue receiving commissary, exchange, and health care benefits after a divorce in certain cases. In order to qualify for continued benefits a former spouse must show that the service member served at least 20 years of creditable service, that the marriage lasted at least 20 years and that the period of the marriage overlapped the period of service by at least 20 years. A former spouse who meets these requirements is known as a 20/20/20 former spouse and is entitled to full commissary, exchange and health care benefits. These benefits include TRICARE and inpatient and out-patient care at a military treatment facility. Former spouses who do not meet these requirements lose their commissary and exchange privileges once the divorce is final.

In cases where the servicemember served 20 years of creditable service, the marriage lasted 20 years, but the period of the marriage overlapped the period of service by only 15 years the former spouse is entitled to full military medical benefits only for a transitional period of one year following the divorce. After this year of coverage, the spouse may purchase a DOD-negotiated conversion health policy. Full coverage also requires that the former spouse does not remarry nor enroll in an employer-sponsored health insurance plan.

Divorce is always a complex event, and this is even moreso when military service is involved. Contact the attorneys at Maselli Warren to help guide you through this transition.