How do I proceed with a military divorce?

Posted By User, Uncategorized On October 3, 2017

Military personnel who are attempting to get divorced face the same procedures that civilians go through. However, military divorces involve some additional factors. Service members have certain rights and obligations with regards to where a divorce will be filed, military pension and other benefits, and child custody. Before you proceed with filing for a military divorce, you need to take these factors into consideration.

Where to File For Divorce

Among all the tasks that couples must consider before filing for divorce, selecting the right state from where to file for divorce is the most important. Divorce laws vary depending on which state you are in. Military members and their spouses are faced with three choices with regards to where to file for divorce:

  • The state where the military member is stationed
  • The state where the military member is a legal resident
  • The state where the service member’s spouse resides

Whichever state you choose to file for a divorce, the grounds for divorce, child support, child custody, and property distribution will be determined by the laws of that particular state. For example, if you choose to file for a divorce in Puerto Rico, the laws here do not allow military pension to be divided between a service member and their spouse. Therefore, if you are the spouse of a service member, filing for a divorce here would not be a smart choice.

Service Members’ Protection against Lawsuits

When filing for divorce, another issue that needs to be considered is the protection afforded to service members with regards to lawsuits. You need to get your timing right. According to the Service Members Civil Relief Act, military members have immunity against lawsuits including divorce proceedings. This protection allows a service member to focus their energies on defending the nation. A court may delay divorce proceedings for the period that a service member is on duty and for up to 60 days after they have completed their active duty.

Military Pension Considerations

Military pensions, like civilian retirement proceeds, may be subjected to division between spouses during a divorce. According to the Uniformed Services Former Spouses’ Protection Act, courts may consider military retirement pay as community or sole property depending on the laws of the state.

Payment of a former spouse’s share of pension benefits is paid through the Defense Finance and Accounting Service. A former spouse qualifies to receive these benefits if they were married to a service member for ten yearsduring which they were in service. This is called the ten year rule.

When filing for a military divorce, you need to determine the rules and laws regarding the payment and distribution of pension and other benefits.

Child Custody Considerations

The military has laws that apply to situations where a child’s caretaker is deployed. Such situations require a family care plan. It sets out what is to happen to a service member’s children when they are deployed. When filing for a military divorce, you should consult your attorney about a family care plan and how it will affect child custody.

The Take Away

Military divorce proceedings are a bit more complex than civil proceedings. When filing for a divorce, you need to focus on the state where you are filing, some of the protections offered to the military with regards to lawsuits, military pension considerations, and child custody considerations. In any case, it is advisable to have a seasoned divorce attorney to assist you throughout the process.

Can I represent myself if I don’t like my lawyer?

The short, easy answer is, yes. But it is much more involved than a simple yes. Divorce can often be a debilitating event in a person’s life if not one of the most stressful. There are phases to a divorce that, depending on your circumstances, can get quite complicated and time-consuming.

The Holmes-Rahe Life Stress Inventory at The American Institute of Stress, states that divorce is the second leading stressful event in life. It is second only to death. Nothing prepares you for the process and it can affect every aspect of your life while the process is on-going.

Divorce not only cause emotional burdens but financial ones that we aren’t always equipped to understand or navigate as are attorneys who specialize in divorce and matrimonial law. Even so, you have a right to represent yourself in any court case.

There are several reasons why you might want to fire your lawyer. Perhaps, you feel your attorney is displaying unprofessional behavior and you believe this would hurt your case. You might feel your attorney doesn’t understand your case or your needs or that they aren’t fighting for you as you feel they should.

You can hire another attorney to represent your case as long as your first one has been fired. You can also represent yourself, but just as in the other instance, you must fire the first attorney. You might think you can save money by representing yourself or because you know every detail of your marriage, you feel you are better able to present your case in court.

There are times when divorcing parties only need to appear in court so that the judge can determine they both understand their rights. Other times, there might need to be several court appearances in order to give evidence, make arguments or bring in witnesses to testify if needed.

People who represent themselves are called “Pro Se” from the Latin “for yourself” or “on one’s own behalf.” But do you really want to be by yourself in such a stressful time? If you do not have a legal background, it can seem like a nightmare to navigate the court system. Do you understand the language and nature of motions, denials, tactics, deadlines?

When there are children and property involved it can get even more complicated and frustrating if you don’t understand the nature of directives and extensions, objections and appeals. Pro Se representation presents many unique challenges.

Phases of a divorce can be heavily tedious even for expert divorce attorneys. There can be eight phases of a divorce trial depending on your circumstances:

  • The Complaint and Summons
  • Answer to the Complaint and Counterclaim
  • Discovery of Facts and Production of Documents
  • Legal Motions and Hearings
  • Pre-Trial Conferences and Court-Ordered Mediation
    Trial
  • Judgment for Dissolution or Decree of Divorce
  • Compliance with the Court Judgment

There are logistical preparations for each phase of your trial. You are already invested in the logistics of your emotions, are you ready or able for the legal ones?

We all know how difficult it is to navigate the rough waters of life with our full attention and capacity to the storm. While you have full rights to represent yourself in your divorce, you should first conduct a full and honest assessment of your life and situation before making any decision to fly Pro Se. It could mean the difference between moving forward with health and happiness or looking back on a chapter of your life with bitterness and regret.