Custody, Visitation, Active Military Duty

Military parent

Divorce is never easy, whether in a civilian or military setting. However, situations such as deployment, active duty in the military, and military-provided benefits may cause some complications in a divorce involving military members.

Two of the most common complications when it comes to military divorce are as follows:

  • child custody and visitation rights; and
  • eligibility and division of military-provided retirement benefits

Custody and Visitation

The issue of custody and visitation is an important matter that needs to be resolved by couples considering divorce. This matter could be incredibly complicated for divorcing couples where one of the spouses is a military member and is on active duty or deployed. As with custody and visitation matters involving children, the ultimate goal is to have an arrangement in the child's best interest. As such, military parents can have proper parenting time with their children.

The Servicemembers Civil Relief Act (SCRA) protects the legal rights of military parents on active duty or deployed to obtain a stay or temporary postponement of custody proceedings in the courts if their military service affects their ability to proceed with the case.

Military-Provided Retirement Benefits

Division of assets is a significant point of contention for any divorcing couple. In addition to the shared property assets, military members' retirement benefits such as TRICARE, commissary and exchange privileges, and retirement payments are substantial assets that may be afforded to non-military spouses in the event of divorce from their military spouses.

Two different rules are applicable in determining the eligibility and division of these significant military-provided retirement benefits to a divorcing couple. These rules are the 20/20/20 rule and the 10/10 rule.

  • What is the 20/20/20 Rule?

The 20/20/20 rule is applied in determining whether a non-military spouse may be eligible to receive the same lifetime benefits such as TRICARE, commissary, and exchange privileges as their military spouse after their divorce.

For a non-military spouse to gain to receive these lifetime benefits under the 20/20/20 rule, the following criteria must be met:

  • The military and non-military spouse must be married for at least twenty (20) years;
  • The military spouse must have served in the military for at least twenty (20) years; and
  • The spouses' 20-year marriage must overlap twenty (20) years of the military member's service.

However, it is essential to note that these lifetime benefits can only be enjoyed by a non-military spouse after their divorce from a military member as long as they do not remarry. Once the non-military spouse remarries, their eligibility for the lifetime benefits afforded by the 20/20/20 rule will stop.

  • What is the 10/10 Rule?

The 10/10 rule applies in determining the eligibility of a non-military spouse for the direct payment of retirement benefits.

The 10/10 rule applies if the following criteria are met:

  • The military and non-military spouse must be married for at least ten (10) years; and
  • The ten (10) years of marriage must overlap with the military spouse's ten (10) years o service.

If the 10/10 rule is applicable, then the retirement pay will be made directly to the non-military former spouse.

  • What If We Do Not Meet the 10/10 Rule?

It is important to note that non-military spouses may still be eligible for a share of their military spouse's retirement pay even if they do not meet the strict 10/10 Rule. Under the Uniformed Services Former Spouses' Protection Act, judges handling the divorce between a military member and a non-military member can award a share of the retirement payment as they deem necessary. However, the significant advantage of the 10/10 rule is that the retirement benefit payment is made directly to the non-military former spouse.

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