Military Divorce: Federal Protections and State Court Jurisdiction

Military divorce occupies a distinct legal space where federal statute and state family law operate simultaneously, sometimes in tension. Federal protections govern pension division, deployment-era procedural rights, and healthcare continuation, while state courts retain exclusive jurisdiction over the divorce decree itself. This page maps the statutory framework — including the Uniformed Services Former Spouses' Protection Act, the Servicemembers Civil Relief Act, and related federal codes — and explains how those laws interact with state residency rules, property division standards, and custody proceedings.

• Definition and Scope
• Core Mechanics or Structure
• Causal Relationships or Drivers
• Classification Boundaries
• Tradeoffs and Tensions
• Common Misconceptions
• Checklist or Steps (Non-Advisory)
• Reference Table or Matrix
• References

Definition and Scope

A military divorce is a dissolution of marriage in which at least one spouse is an active-duty servicemember, reservist, or military retiree subject to the Uniform Code of Military Justice and the federal statutes that govern military pay, benefits, and service obligations. The defining legal characteristic is not the branch of service but the application of a parallel federal statutory layer that overrides or modifies standard state divorce procedures in specific, enumerated circumstances.

The scope of federal involvement spans four primary domains: (1) division of military retired pay under the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. §§ 1408–1410; (2) procedural protections during deployment under the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. §§ 3901–4043; (3) healthcare continuation rights for former spouses under 10 U.S.C. § 1072 (the "20/20/20" and "20/20/15" rules); and (4) child and spousal support enforcement through the Defense Finance and Accounting Service (DFAS) allotment system.

State courts handle all threshold divorce questions — grounds, residency, property classification, custody, and support — but they must operate within the federal ceiling on military-specific benefits. A state court cannot, for example, award a former spouse more than 50 percent of a servicemember's disposable retired pay (or 65 percent when child support is also payable) (USFSPA, 10 U.S.C. § 1408(e)(1)).

Core Mechanics or Structure

Jurisdiction and Residency

State court jurisdiction in military divorces is complicated by frequent relocations. Under divorce jurisdiction requirements as applied to military families, a state court may assert jurisdiction if: (a) the servicemember is domiciled in the state; (b) the servicemember is a legal resident of the state for purposes other than military assignment; or (c) the servicemember consents to jurisdiction. Mere physical presence at a military installation does not automatically establish domicile in that state (SCRA, 50 U.S.C. § 4001).

The distinction between domicile, legal residency, and physical presence is critical under federal vs. state divorce law. A servicemember stationed in Virginia whose legal domicile remains Texas retains the right to file in Texas, not Virginia, and a Virginia court filing by the other spouse may lack personal jurisdiction over that servicemember's retired pay.

USFSPA Mechanics

The USFSPA does not automatically divide military retired pay — it authorizes state courts to treat disposable retired pay as marital property subject to division under that state's property laws. Whether a given state treats such pay as community property or as a form of equitable distribution (equitable distribution states) determines how the math is applied.

Direct payment from DFAS to a former spouse requires two conditions: (1) the court order must satisfy DFAS's own certification requirements; and (2) the marriage must have overlapped with at least 10 years of creditable military service (the "10/10 rule," 10 U.S.C. § 1408(d)(2)). Below 10 years of overlap, the former spouse can still be awarded a share by the court — but the servicemember must pay it directly; DFAS will not process the order.

SCRA Procedural Protections

Under the SCRA, a court must stay (pause) divorce proceedings for at least 90 days when a servicemember demonstrates that active duty prevents appearance and that the ability to defend is materially affected (50 U.S.C. § 3931). Courts may grant additional stays beyond 90 days at their discretion. Default judgments entered without SCRA compliance are subject to reopening for up to 90 days after the servicemember leaves active duty.

Healthcare: The 20/20/20 and 20/20/15 Rules

A former spouse who meets the "20/20/20" criteria — 20 years of marriage, 20 years of creditable military service, and 20 years of overlap between marriage and service — qualifies for full TRICARE coverage under 10 U.S.C. § 1072(2)(F). A former spouse meeting "20/20/15" criteria (20 years of marriage, 20 years of service, 15 years of overlap) qualifies for transitional TRICARE for 1 year post-divorce. Below 15 years of overlap, no TRICARE coverage attaches to the former spouse.

Causal Relationships or Drivers

The layered federal-state structure in military divorce arises from three structural causes.

Congressional preemption choices. Congress has selectively preempted state law in areas where uniform national rules are necessary for military readiness and benefit administration. Retired pay computation, for instance, follows federal formulas tied to the Final Pay, High-36, or Blended Retirement System (BRS) — the method applicable depends on the servicemember's entry date relative to January 1, 2018 (DoD Financial Management Regulation, Volume 7B). State courts cannot modify those computation formulas; they can only allocate the result.

Frequent relocations. Military families move an average of 2.4 times more frequently than civilian families (per the Department of Defense's Military Family Life Survey), generating genuine questions about which state's law governs property accumulated across postings in multiple states. This drives reliance on the servicemember's domicile state rather than the state of assignment.

Dual-compensation prohibitions. Veterans' Affairs disability compensation, governed by 38 U.S.C. § 5304, cannot be divided as marital property in most circumstances. When a servicemember waives retired pay to receive disability compensation — a practice the Supreme Court addressed in Howell v. Howell, 581 U.S. 232 (2017) — state courts cannot order the servicemember to indemnify the former spouse for the lost retired-pay share. This single causal factor routinely reduces a former spouse's actual recovery below what the divorce decree projected.

Classification Boundaries

Military divorces fall into distinct procedural categories based on service status and benefit eligibility:

Active-duty divorces trigger maximum SCRA protections and require courts to account for Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) in income calculations for child and spousal support. BAH rates are published annually by the Defense Travel Management Office.

Retirement-pending divorces involve a servicemember within 1–3 years of retirement eligibility. The choice of retirement system — Final Pay, High-36, or BRS — affects the marital portion calculation, particularly whether a "frozen benefit rule" or a "time rule" formula applies under the relevant state's approach to marital property division laws.

Reserve/Guard divorces add complexity because retirement points (not years of continuous service) determine retired pay. A reservist with 20 qualifying years may not begin drawing retirement until age 60, which delays the former spouse's benefit stream by potentially decades. Point-based calculations require access to the servicemember's Retirement Points Statement.

Post-retirement divorces are the simplest for DFAS processing because the retired pay amount is already fixed, but they introduce the disability-offset risk described above and require immediate attention to the qdro-retirement-assets-divorce parallel — military retired pay division orders are not QDROs but serve an analogous function through a "Military Pension Division Order" (MPDO).

Tradeoffs and Tensions

Federal Caps vs. State Property Principles

A state court applying community property principles — as in community property states such as California, Arizona, or Texas — may determine that 50 percent of the marital portion of retired pay belongs to the former spouse by right. Federal law caps DFAS direct payment at 50 percent of disposable retired pay. When disability waivers reduce disposable retired pay, the effective payment falls below the state-ordered share, and federal law (post-Howell) bars indemnification orders. This creates a structural gap between state entitlement and federal enforceability.

SCRA Delays vs. State Procedural Timelines

SCRA stays protect servicemembers from default judgments during deployment but can extend contested divorces by 12–24 months or longer across multiple deployment cycles. Some states have developed expedited procedures for uncontested military divorces, but contested custody matters cannot be fast-tracked in ways that bypass SCRA rights.

Disability Compensation vs. Marital Estate Value

When a servicemember converts retired pay to VA disability compensation, the marital estate loses an asset the court originally valued. Unlike civilian disability plans governed by ERISA, military disability pay carries no division mechanism for former spouses. This tension — identified clearly in Howell v. Howell (2017) — remains unresolved by Congress as of the statute's current text.

Survivor Benefit Plan (SBP) Election Timing

The Survivor Benefit Plan (SBP), governed by 10 U.S.C. §§ 1447–1455, provides a former spouse annuity if the servicemember dies first. A court order directing SBP coverage is enforceable only if the "deemed election" is filed with DFAS within 1 year of the divorce decree. Missing this 1-year window permanently extinguishes the former spouse's SBP coverage, regardless of what the divorce decree says.

Common Misconceptions

Misconception: The 10/10 rule entitles the former spouse to 50 percent of retired pay.
Correction: The 10/10 rule is a DFAS payment-processing threshold, not a substantive entitlement. The divorce court determines the percentage; 10/10 determines only whether DFAS pays the former spouse directly.

Misconception: Active-duty servicemembers cannot be divorced without their consent.
Correction: The SCRA guarantees procedural protections and mandatory stays but does not prevent divorce from being finalized. After applicable stays expire and due process is satisfied, a court may enter a final decree.

Misconception: Military retired pay is always divided equally.
Correction: Division percentage and formula depend on the state's property law and the court's calculation of the marital portion — which typically uses either the "time rule" (a fraction of the ultimate benefit based on service years during marriage) or a fixed dollar amount at the time of divorce. Neither method defaults to 50/50.

Misconception: VA disability compensation can substitute for lost retired pay.
Correction: The Supreme Court held in Howell v. Howell, 581 U.S. 232 (2017), that state courts cannot require servicemembers to indemnify former spouses for retired pay lost to VA disability waivers. Disability pay is not divisible marital property under federal law.

Misconception: TRICARE coverage for former spouses continues automatically after divorce.
Correction: TRICARE coverage terminates at divorce unless the former spouse meets the 20/20/20 criteria. The Department of Defense's TRICARE coverage rules require the former spouse to affirmatively enroll; there is no automatic continuation.

Checklist or Steps (Non-Advisory)

The following identifies the discrete procedural checkpoints present in a military divorce proceeding. This is a reference framework, not legal guidance.

Phase 1 — Jurisdiction and Filing
- [ ] Identify the servicemember's legal domicile state (distinct from duty station state)
- [ ] Confirm that the filing state meets residency requirements for divorce under its own statutes
- [ ] Determine whether the servicemember consents to jurisdiction or must be served under SCRA rules
- [ ] Verify whether SCRA stay rights apply and obtain a Military Service Verification Letter from the Defense Manpower Data Center (DMDC) at scra.dmdc.osd.mil

Phase 2 — Financial Disclosure and Benefit Identification
- [ ] Obtain the servicemember's most recent Leave and Earnings Statement (LES) showing base pay, BAH, and BAS
- [ ] Identify the applicable retirement system: Final Pay, High-36, or Blended Retirement System (entry on or after January 1, 2018)
- [ ] Request the Retirement Points Statement (for Reserve/Guard members) from the appropriate service branch
- [ ] Determine whether any VA disability compensation waiver exists or is anticipated
- [ ] Confirm the SBP election status and whether a former spouse beneficiary designation is possible

Phase 3 — Court Order Drafting
- [ ] Draft the Military Pension Division Order (MPDO) in compliance with DFAS's Military Pension Division Order Guidance
- [ ] Specify the division formula explicitly: time-rule fraction, fixed dollar amount, or percentage of disposable retired pay
- [ ] Include a deemed SBP election provision with explicit reference to the 1-year filing deadline under 10 U.S.C. § 1450(f)
- [ ] Address TRICARE eligibility criteria if the former spouse meets 20/20/20 or 20/20/15 thresholds

Phase 4 — Post-Decree Compliance
- [ ] Submit the MPDO to DFAS within the time frame specified by the court order
- [ ] File the deemed SBP election with DFAS within 1 year of the final divorce decree
- [ ] Confirm TRICARE enrollment through the TRICARE Regional Contractor if eligibility criteria are met
- [ ] Monitor for any post-divorce VA disability waiver elections that would reduce disposable retired pay

Reference Table or Matrix

Federal Protections in Military Divorce: Key Rules at a Glance