When a spouse serving in the active-duty military or reserves, or a spouse married to a servicemember, seeks to end the marriage through divorce, they should be aware that the legal considerations are somewhat different from that of a civilian divorce. While much of the required legal paperwork is the same, there are many special issues, considerations, and consequences of a military divorce that are important to understand.
- Jurisdiction and Residency Issues
In a civilian divorce, the divorce is usually filed in the state where one or both spouses reside. In a military divorce, determining jurisdiction can be more complex because service members may be stationed in various states or countries. New York allows military couples to file for divorce even if the service member is stationed elsewhere, provided one spouse meets the state’s residency requirements. A military spouse can file for divorce in New York if they have lived in the state for at least one year, or if they were married in the state or lived in the state as a couple. - Retirement Benefits
Military divorces are governed not only by state divorce laws but also by federal laws such as the Uniformed Services Former Spouses’ Protection Act (USFSPA), which regulates how military retirement benefits are divided. This means that New York courts can divide military retirement benefits as part of the marital property, often by issuing a separate Retired Benefits Court Order. The division of these benefits depends on the length of the marriage and the overlap with the service member’s military career. - Child and Spousal Support Issues
In New York State, child and spousal support in military divorces are calculated according to state guidelines, but military pay, including basic pay, housing allowances, and other benefits, are also factored in. This can result in higher or lower payments, depending on the specific military entitlements. New York courts will also apply military branch regulations, which require service members to provide adequate support for their families, ensuring that family support obligations are met while the divorce is pending. - Health Care and Benefits Issues
In a New York or Long Island military divorce, if the marriage qualifies under the “20/20/20 rule” (20 years of marriage, 20 years of military service, and 20 years of overlap between the two), the non-military spouse can retain Tricare healthcare benefits for life. If the marriage does not meet this rule, the non-military spouse may lose TRICARE coverage after the divorce is finalized, requiring him or her to seek private health insurance. Spouses may also lose access to military commissary and exchange privileges, depending on the duration of the marriage and the overlap with the service member’s career. - SCRA Protections in New York Courts
Under the Service Members Civil Relief Act (SCRA), New York courts are required to provide service members protection against default judgments if they are unable to participate in divorce proceedings due to military service. This can delay divorce cases in New York if the service member is on active duty, ensuring the process is fair for them when they are unavailable. - Child Custody Issues
Deployment and frequent relocations pose unique challenges for military families in New York. When determining child custody, New York courts will prioritize the child’s best interests, but may make special provisions for military service members, such as allowing temporary modifications during deployments or accommodating visitation during leave periods. New York courts may also ensure that custody arrangements are flexible, allowing for modifications when the service member’s military obligations change. - Housing and Property Division Issues
Military families may live in government-provided housing. After a divorce, the non-military spouse may lose access to this housing, so it’s important for separating couples to address future housing needs during the divorce negotiations. With respect to property division, New York is an “equitable distribution” state, meaning marital property, including military benefits, will be divided in a way the court deems fair (though not necessarily equal).
Every military divorce case is different
The unique aspects of military life—such as deployments, frequent relocations, and military benefits—add complexity to divorce cases, but New York courts strive to balance these factors with state law to ensure fair outcomes for both spouses. It’s always best to seek out the services of a Long Island military divorce attorney that is well-versed in the legal nuances associated with military divorces to obtain the best outcome. Our firm serves Suffolk and Nassau Counties in Long Island, NY. Contact us for a free consultation.