Military Divorce and Custody: Special Considerations

The Military Changes Everything About Custody

Military families face unique challenges in divorce and custody that civilian attorneys often miss. Deployment, relocation orders, the SCRA, military pension division — these require specialized knowledge.

SCRA Protections (Servicemembers Civil Relief Act)

The SCRA is your shield if you're on active duty:

• Stay of proceedings: If active duty prevents you from appearing in court, you can request a stay (postponement) of at least 90 days. The court must grant it if your military duties materially affect your ability to participate.
• Default judgment protection: A court cannot enter a default judgment against you while you're on active duty unless it first appoints an attorney to represent your interests.
• Post-deployment grace: You typically get an additional 90 days after returning from deployment before proceedings can resume.

This protection exists because the military comes with unique obligations. Use it when you need it — there's no shame in requesting a stay.

Deployment and Custody

Deployment creates specific custody challenges:

Before Deployment

• File a temporary custody order with the court before you deploy
• Create a Family Care Plan: Designate who will care for your children during deployment (ideally a family member, not the other parent if custody is contested)
• Consider a limited power of attorney for the designated caregiver
• Document the current custody arrangement so there's a clear status quo to return to

During Deployment

• Maintain contact with your children: video calls, letters, care packages
• Have your designated caregiver follow the parenting plan
• Document your communication efforts

After Deployment

• Your parenting time should be reinstated as it was pre-deployment
• If the other parent filed for modification during deployment, the SCRA should have protected you
• File to reinstate or modify the custody arrangement if needed

Military Pension Division

Military retirement can be divided in divorce:

• 10/10 Rule: If the marriage overlapped with 10+ years of military service, DFAS (Defense Finance and Accounting Service) can pay the former spouse directly. Under 10 years of overlap, division may still be ordered but payments go through the service member.
• Frozen Benefit Rule: The former spouse's share is calculated based on the member's rank and years of service at the time of divorce, not at retirement.
• Survivor Benefit Plan (SBP): Courts can order SBP coverage for the former spouse.

BAH and Child Support

Basic Allowance for Housing (BAH) is typically counted as income for child support calculations. This is important because:

• BAH is tax-free, so it's often counted at a higher effective rate
• BAH rates vary by location and dependent status
• A change in BAH can affect support calculations

Free Legal Resources for Military

• Stateside Legal: Free legal help for military members and veterans
• Military OneSource: 1-800-342-9647 — free counseling, legal referrals, financial counseling, 24/7
• JAG Office: Your installation's legal assistance office provides free legal consultations. They can't represent you in court but can advise and review documents.
• NVLSP: National Veterans Legal Services Program — for complex legal issues

Next Steps

1. Contact your installation's JAG office for initial guidance
2. Call Military OneSource 1-800-342-9647 — they can help with legal referrals
3. Find a family law attorney with military divorce experience (not all have it)
4. If deploying, get temporary custody orders in place BEFORE you leave
5. Visit Stateside Legal for free legal assistance