Military divorce in New York

With military divorces, one or both spouses are active or retired members of a U.S. military service such as the army, navy, or air force. Although the procedural process is the same for both civilian and military couples, the latter will have to address certain situations that don’t apply to civilians.

Protection from legal proceedings

Active duty military members are legally protected from being held in ‘default’ if they do not respond to a divorce action. These laws were enacted as safeguards to protect them from being divorced without their knowledge. In fact, under the Soldiers and Sailors Civil Relief Act, a New York military divorce proceeding can be postponed for the entire length of time that a service member is on active duty plus 60 days.

Jurisdictional issues

Military divorces can raise complicated jurisdictional questions. For example, service members stationed in New York at the time of the divorce may consider another state “home.” Conversely, New York residents could end up being stationed elsewhere due to military obligations. To file for a military divorce in the state, the petitioner or their spouse must reside or be stationed in New York.

Spousal maintenance and child support

All branches of the U.S. armed forces are unanimous in the opinion that military personnel support their dependents. Service members, however, cannot be ordered to pay any more than 60% of their pay and allowances in combined spousal maintenance and child support.

Retirement benefits

The Uniformed Services Former Spouses’ Protection Act (USFSPA) prevents former spouses from sharing in retirement benefits unless they were married for a minimum of 10 years while the military husband or wife was on active duty. While disposable retirement pay is normally subject to division upon divorce, certain types of benefits are not. They include:

• Military disability
• VA disability
• Concurrent Retirement and Disability Pay (CRDP)
• Special Combat-Related Compensation (SCRC)

Survivor Benefit Plans (SBP) present additional challenges. This is a type of annuity paid to a surviving spouse after a military member passes away. A New York court may order that an ex-spouse receive the benefits of an SBP, but if their military ex retires before they have completed the 20-year service mark, these benefits are not payable.

Service members who are planning to end their marriages should engage the assistance of a family law attorney with expertise in New York military divorces. Their attorney can help ensure that the final divorce decree protects their service benefits. Military spouses can work with a divorce attorney to craft a decree that reimburses them if their share of retirement benefits is reduced due to their former spouse’s receipt of disability pay. In either situation, expert legal support and advice are necessary to bring about as fair an outcome as possible. Eskin & Eskin, P.C. is a family law firm for your family law needs. If you or your spouse is in the military and you are seeking a divorce, then it is important to consult with an experienced divorce attorney as there are special provisions in that instance. Call 212-402-5204 for a free consultation. Visit www.EskinAndEskinLaw.com to learn more about our firm.