Divorce is never easy and can be one of the most difficult and stressful times in your life. This is especially the case if one or both spouses are in the military. A military divorce in New York presents several unique issues to the divorce process. If you or your soon-to-be former spouse is in the military, you should know that there are a few ways that this can affect your divorce. Because of the service that military members give to the country, they are afforded some extra protections under the law when it concerns divorce and family matters.
In most respects, you will proceed with your divorce the way civilian couples in New York do. You must work out issues with your soon-to-be former spouse, including distribution of assets, child custody and visitation, child support and spousal maintenance. You might wish to seek out divorce mediation in order to avoid some of the expenses and stress of litigating your divorce.
What sets these divorces apart, however, is that there are certain federal laws that come into play with respect to military benefits.
For example, military spouses are protected by the Servicemembers Civil Relief Act when it comes to divorce. If a spouse is on active duty or has an upcoming deployment, they may be allowed to “stay” the divorce proceeding — in other words, delay it or put it on hold until their active duty has ended. If the service member can show that their active duty prevents them from getting into court or impedes their ability to protect their legal rights, they can make a request to the court. While this is not an automatic right, courts will usually allow it if it is based on good cause.
Service members are also afforded protections if they fail to respond to a summons or fail to appear in court. A court generally cannot enter a judgment based on the default if the defaulting party is in the military. There are some exceptions to this rule. For example, an attorney may be appointed to act on the service member’s behalf in some cases.
Former spouses of military members may also be entitled to certain retirement benefits and medical benefits based on their status as a former military spouse. Other benefits are also allowed based on the length of the marriage, the length of the military service, and the length of time that the marriage and the military service overlapped. Many benefits require at least 20 years of marriage and 20 years of service to keep spousal military benefits. If these requirements are not met, then a military spouse will not be entitled to any benefits after the divorce is finalized.
With regard to spousal and child support, military members are required to pay court-ordered child support and spousal support. Garnishment of the military member’s pay can be ordered through the Defense Finance and Accounting Service.
Finally, children of a military parent are entitled to keep their military health care benefits until the designated ages. Stepchildren of a military spouse, however, would lose coverage once the divorce is finalized if the service member had not adopted the child.
It is important that you choose a Long Island Divorce Lawyer who is experienced with the unique issues affecting military divorce in New York. The Divorce Law Office of Robert E. Hornberger, Esq. serves families in Nassau County, Suffolk County, and New York City in all aspects of family law, divorce law, and divorce mediation. If you have a question regarding your military spouse or military divorce, contact us today at 631-923-1910 to schedule your free consultation.
For more information about Divorce on Long Island, visit this page: Divorce Lawyers Answer Questions about Long Island Divorce
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