In many ways, a divorce involving military personnel is the same as for civilians. North Carolina is a “no fault” state (meaning the couple does not need to provide a reason why they want the divorce,) the divorce is filed the same way for both, and all couples must be separated for a mandatory one year period before they can file for divorce.
Division of property and assets, as well as child custody decisions, follow the regular state laws. There are, however, some discernible differences in a military divorce, specifically in the response timeline for active military personnel, awards for alimony and child support, and payout of military retirement benefits.
In order to file for divorce in North Carolina, either military personnel or their spouses must reside in or be stationed in the state for at least six months. Military personnel who are on active duty must be personally served with a divorce complaint. In addition, active members of the military will not be held in default for failing to timely answer a divorce complaint.
If you are a member of the military considering separating from your spouse, or you’re considering ending your marriage to a member of the military, the Breeden Law Office can:
For a military spouse, separation raises a few questions. Your first inquiry may be whether there is any official first step that is needed to initiate a separation. No official documentation is required to begin a separation in North Carolina. All you and your spouse have to do is live in different residences, with one of you not having the intent to reconcile. If it seems like the separation may continue for longer than you initially planned, you may want to look into preparing a separation agreement.
A separation agreement is a written document that officially lists the terms of your separation. Issus commonly addressed in a separation agreement include:
It’s important to remember that signing a separation agreement does not terminate your marriage. Neither does living separately. The only thing these actions officially achieve is displaying your intent to live separately. They also make the terms of your separation clear and make your future path simpler if you decide to divorce.
If you’re concerned about the contents of your separation agreement, contact a military marriage separation attorney from our firm today for help.
During a military separation, pay almost always becomes a question. Each branch of the military has its own policy regarding spousal support during and after a separation. In general, these policies are meant to be short-term solutions. The non-military spouse must request financial help, and their request must go through a civilian court.
The military is part of the U.S. government. This means that support payments for a military member or veteran require an extra bureaucratic step. An order must be sent to the Defense Finance and Accounting Service, directing the government to pay child support or alimony.
Under North Carolina law, marital property must be divided equitably, meaning marital property and assets must be divided fairly – not necessarily equally. With certain exceptions, a non-military spouse may also receive part of their supporting spouse’s retirement pay. For a former spouse to be entitled to direct payments from a retirement fund, you must have been married for at least 10 years.
You and your family may be required to move around as part of your military service. This can cause complications with the residency requirements of North Carolina divorce law.
While there is no action required for official separation, the beginning of your separation will have implications should you decide to divorce in the future. In order to file for a divorce, you must have been separated for at least one year. This is judged based on your intent not to get back together.
If you or your spouse were enlisted in North Carolina, those records could be used to show your separation. Furthermore, a North Carolina divorce typically requires six months of residence in the state prior to filing. If you or your spouse were stationed in North Carolina, your enlistment records could satisfy this requirement as well.
The Uniformed Services Former Spouse Protection Act (USFSPA) outlines how military retirement pay may be divided in a divorce. It also provides some benefits and protection to former military spouses.
USFSPA treats disposable military retirement pay (or, monthly retirement pay minus any qualified discounts) as property, allowing it to be divided as such in a divorce. Former military spouses can use disposable retirement pay to cover child support payments or alimony, provided a court order shows these payments must be made. USFSPA will also allow former military spouses to receive health care benefits in certain cases.
Established in 2003, the Servicemember’s Civil Relief Act (SCRA) replaced the 1940 statute known as the Soldiers’ & Sailors’ Civil Relief Act. It is designed to protect active-duty members of the military, who are serving in a position where they are not allowed to take leave, from all judicial proceedings so that they may focus on their job: protecting the nation.
The Act also provides protection from post-decree proceedings, such as spouse or child support orders. There is a section in the act that refers to “anticipatory relief”, which states:
“(a) APPLICATION FOR RELIEF.—A service member may, during military service or within 180 days of termination of or release from military service, apply to a court for relief — (1) from any obligation or liability incurred by the service member before the service member’s military service; or (2) from a tax or assessment falling due before or during the service member’s military service.”
Military members may use this application for relief to amend their alimony or child support payment obligations if they anticipate a likely breach. For example, if a military member was paying support based on wages from a civilian job that earned more money than active duty pay, and he or she became active and had to leave his or her civilian job, he or she could apply to have the support payments reduced or reconfigured.
Divorce is always complicated, but for members of the military, there are additional complexities involved. An experienced lawyer will be able to help you untangle the combination of laws that govern a military separation and divorce. This includes unique custody problems, spousal support, and how proceedings are influenced by military, federal, and state law.
If you’re filing for a military divorce, you need to remember there is a lot to consider. A North Carolina divorce attorney with considerable military divorce experience can answer your questions and outline everything you need to know. Attorney Jonathan Breeden at Breeden Law Offices has the knowledge and background that North Carolina residents should look for when they are considering ending their marriage.
Contact Breeden Law Offices today at (919) 661-4970 to learn more.
Call Breeden Law Office today:(919) 296-3978