In 2003, the Servicemembers Civil Relief Act took effect and changed the way military divorce procedure in Pennsylvania would be handled. When filing a divorce complaint, each person must state the military service record of the spouse named as the other party.
The service member spouse must be personally served with a divorce complaint, or if the divorce is uncontested, the service member spouse must sign and file a waiver affidavit acknowledging the divorce action. This rule helps keep divorcing military spouses from being penalized if they are unable to attend divorce proceedings due to military requirements.
In addition to notifying the court whether you or your spouse is a service member, there are other factors, such as domicile and benefits, to consider in a military divorce.
Domicile Residency Requirement
Generally, there is a six-month domicile residency requirement to file for a divorce in Pennsylvania. However, exceptions for services members allow them to file in the state in which they resided for the past six months, their “home state” where they file their taxes, the state the non-military spouse lived in for the past six months, or even in the state in which they are stationed.
Domicile in Pennsylvania is commonly determined by physical presence in the state plus the intent to remain. Consulting with a Pennsylvania attorney who understands the exceptions to the domicile requirements for service member spouses is in the best interests of all parties involved in a divorce proceeding involving the armed forces.
Properly determining the correct domicile for the service member spouse is important in determining what claims the court can adjudicate, such as military pension division, equitable distribution, and even child custody.
Military Benefits in Divorces
Moreover, service members facing divorce should consult with a Pennsylvania attorney who is well-versed in the Uniformed Services Former Spouses’ Protection Act (USFSPA), which allows states to divide certain military retirement benefits, including military retirement pay.
Other benefits that must be addressed under USFSPA in a military divorce depend on the “20/20/20 rule.” The 20/20/20 rule applies to military members and spouses who have been married for at least twenty years while the military member served at least twenty years and the period of marriage and service have overlapped by at least twenty years.
Military spouses who meet the 20/20/20 criteria can be entitled to full military medical benefits, commissary and exchange privileges, and portions of the military spouse’s retirement pay.
Family Care Plan and Powers of Attorney
Another consideration in a service member divorce action is the military’s requirements for a family care plan and powers of attorney. It is important for both the non-service member spouse and the service member spouse to understand that a family care plan that attempts to assign custody rights to someone other than a biological parent is not binding.
Therefore, a military spouse cannot assign custody rights to a grandparent or stepparent over the objection of a parent through the family care plan.
Custody and the effects of a military divorce are often contentious legal issues in and of themselves. Consulting with a Pennsylvania attorney who has experience dealing with military divorce is the best protection you can afford yourself as a service member or a non-service member spouse.
Call Lisa Marie Vari & Associates
If you are a service member who is thinking about divorce or wants more information on USFSPA and the Servicemembers Civil Relief Act of 2003, contact the knowledgeable Pennsylvania family law attorneys at Lisa Marie Vari & Associates, P.C.
Active duty service members are entitled to a free thirty-minute consultation, and non-active duty service members or their spouses may schedule a paid, no-obligation consultation today by completing the contact form below or calling our office directly at 1-844-VARI-LAW (827-4529). Let us help you.