Besides the expected emotional toll, divorce is also a legally complex issue in New York that many couples aren’t adequately prepared to face. Due to the intersection of state and federal laws, dissolving a marriage where one spouse is in the military is frequently even more complicated. Without the help of an experienced divorce attorney, you could end up losing out on marital assets or benefits that should belong to you.
Filing for a Military Divorce in New York
While the basic process is the same, there are several key differences in either a contested or uncontested divorce where one spouse is in the armed services. For instance, in a military divorce, where you specifically file can vary. You could file in the state where the military spouse is stationed, or the state where either spouse is a legal resident.
For a New York court to have jurisdiction, the active-duty spouse must be personally served the divorce papers, and they must be served by a neutral third party over 18 years of age who has no vested interest in the marriage.
While the jurisdiction may change due to how military families relocate over time, the reasons allowed for dissolving a marriage remain the same. Like with any other New York divorce, a military member or their spouse can file for divorce in the event of:
- Cruel behavior that endangers your mental or physical well being
- Either spouse spending at least three years in prison
- Irretrievable marriage breakdown for at least six months
- One year passing since separating
Issues to Watch Out for During a NY Military Divorce
A potential snag may occur in your divorce through the Servicemembers Civil Relief Act, which was passed to shield military personnel from being divorced and having their assets split by a court without their knowledge while serving overseas. Active military are allowed to delay divorce proceedings for the full duration of their current deployment and up to an additional 60 days after a tour ends. Of course, the military spouse has the option to waive those delays and allow the divorce to go through during deployment if they want the marriage to end.
Other aspects of military divorce remain the exact same as with civilian separations. Child support and spousal maintenance may be ordered by a court, although a service member cannot be required to provide more than 60% of their pay between the two. Military members who fail to pay court-ordered child support or maintenance can be reduced in rank, receive a pay cut, or lose out on leave time.
If the two spouses can’t agree on how to divide their property and assets, the court will decide on the specifics of splitting all marital property and monetary assets—just like with a civilian divorce. There are some key considerations in the division of assets to go over with an attorney, like the fact that military retirement benefits are considered marital property.
A portion of those benefits accrued from the date on the marriage certificate through the separation may be owed to the non-military spouse. If the marriage lasted a full 10 years or longer, and one spouse was in the military for the entire 10 years, federal law allows the Defense Finance and Accounting Service to pay benefits directly to the ex-spouse after divorce. In cases where the marriage ends prior to the 10-year minimum, New York state law still allows part of military pension benefits to be assigned during the division of property.
That isn’t the only monetary consideration when splitting up assets, however. Benefits from a military spouse’s Survivor Benefits Plan or Thrift Savings Plan can also be divided by the courts. These military-specific concerns mean it is often better for the two parties to reach a division agreement through mediation by using an experienced attorney rather than putting decisions solely in the court’s hands.
Talk to a Legal Representative If You Are Considering a Military Divorce
Whether you are currently active military or the spouse of a service member, you need to speak with an attorney to ensure your legal rights are protected during the divorce process. You want a lawyer with experience in these kinds of cases who will fully consider all the issues specific to your situation, from child custody to loss of base commissary access. Contact Alatsas Law Firm today to schedule an appointment and find out how we can help you.