Military Divorce In Indiana
“Will I miss out on a chance to state my case because I’m away on active duty?” “Will the court automatically deny me custody because I PCS often?” “Will my visitation be limited because of my job?” “What happens to my military retired pay or veteran’s benefits?” These are just some questions that service members going through a divorce are anxious to have answered.
The mobile nature of the military, the mythology and misunderstanding, all give rise to different types of anxieties when it comes to a Military Divorce. Clear understanding of the law is a vital first step to busting these myths, building confidence and restoring a sense of control.
A Military Divorce handles the same issues as any other divorce: Child Custody, Parenting Time (Visitation), Child Support, Spousal Support and Property Division. However, the details and intricacies within each issue can be far more complex in a Military Divorce, mostly due to the federal statutes that protect soldiers and their pay. Whether you are a service member or spouse, you will need a competent attorney with extensive experience to handle your Military Divorce.
Where to File
In order to file for divorce in Indiana, the service member or spouse must reside in Indiana, or be stationed at a military installation within the State, for at least 6 months before filing. In most cases, if the Service member’s Official Home of Record is listed as Indiana, then he or she may file in Indiana.
Two Important Pieces of Federal Law That Affect Military Divorce
There are two important federal statutes that apply to military divorces. The first is the Service Members’ Civil Relief Act (SCRA), formerly known as the Soldiers’ and Sailors’ Civil Relief Act. The SCRA applies to active duty members of the military in a variety of legal matters. In divorce proceedings, it allows the service member to obtain a “stay” or postponement of the case. This is not an automatic right, however. The service member must show that his or her military service materially affects the ability to appear in court, or deal with a pending court case. Specifically, the service member must submit in writing the following information to the court:
- How military requirements materially affect the service member’s ability to appear (such as deployment);
- The date when the service member will be available to appear; and
- Communication from the commanding officer stating that duty prevents appearance and leave is not authorized.
If this information is proven, then the court must grant a stay or postponement of at least 90 days.
The second important federal statute in military divorces is the Uniformed Services Former Spouses’ Protection Act (USFSPA). This applies both to service members and spouses in divorce proceedings. One key benefit for both parties is the framework for dividing Military Retired Pay, or the “10/10 Rule”. The 10/10 Rule states that the parties’ marriage and the service member’s military service must have overlapped by 10 years before DFAS will pay a portion of the Military Retired Pay to the (former) spouse.
However, the state court still has the power to divide Military Retired Pay regardless of the length of marriage. The 10/10 Rule just applies for DFAS to set up automatic payments to the former spouse. The state court can divide the Military Retired Pay and require the service member to pay the former spouse directly.