Military Divorce Attorneys
Military divorce can involve some unique issues when it comes to jurisdiction, division of property, child custody, and eligibility to receive your ex-spouse’s benefits and privileges.
New Mexico Financial & Family Law is proud to provide assistance to those who serve our country and their families, as well. Located in Albuquerque, New Mexico, we focus on educating our clients and helping them pursue the optimal decisions for their goals.
When it comes to military divorce matters, there can be complicated rules to understand. There may also be important decisions to make, such as whether or not to employ the “reserve jurisdiction” method for calculating the split of retirement pay. Our military divorce lawyers aim to make your options clear and to simplify the process of undergoing a divorce. You can benefit from a clearer understanding of the law and your options, hopefully minimizing the stresses of the divorce procedure.
Members of the U.S. Armed Forces are taught to be self-sufficient, but that doesn’t mean you have to go it alone. Let New Mexico Financial & Family Law assist you with making sense of your military divorce while seeking the optimal outcome for you and your family. Learn more about your options and available legal strategies during a no-obligation case review. Call (505) 503-1637 or contact us online to schedule your risk-free appointment now.
Jurisdiction, Eligibility to File for Military Divorce in New Mexico
When one spouse is an active duty military member, there are rules used to establish whether the couple can file for divorce in a New Mexico district. A couple only has to meet one of the following conditions for a New Mexico District Court to have jurisdiction over their divorce case:
- The military member spouse was stationed continuously in New Mexico for at least the past six months prior to filing
- The non-military spouse currently resides in New Mexico and has done so for at least six consecutive months prior to filing
- Either spouse resided in New Mexico for at least six months immediately preceding the military member enlisting or moving to active duty, and once the military spouse is no longer stationed they intend to reside in New Mexico
Laws about jurisdiction are outlined in New Mexico Statutes § 40-4-5.
Process of Service to an Active Duty Military Spouse
In order for a divorce to commence, the filing spouse must give “process of service” to the other spouse. This is known as “being served”, and it requires a third-party courier or certified mail receipt.
Unfortunately, while an active duty service member is stationed abroad, they may have difficulty receiving the paperwork. They may also be delayed in their response as a result of their duties. Recognizing this, Congress passed the Service Members Civil Relief Act back in 1940. Under the rules established by this act, the service member may be able to delay their response to the divorce proceedings by requesting a 90-day stay. This stay can be extended through a subsequent request, although the service member must justify their reasons for requesting.
Overall, having an active duty spouse stationed outside of New Mexico can complicate and delay divorce proceedings. This fact is important to be aware of during a military divorce.
Minimum Eligibilities for Military Retirement Benefits to Become Community Property
Certain military benefits, such as retirement pay (pension), are considered community property, but only the amount that has accrued during the time of the marriage.
In order for the non-military spouse to be eligible to receive this property, they must have been married to the service member for a period in accordance with the “20/20/20” rule:
- The couple must have been married at least 20 years
- The service member must have served for at least 20 years
- At least 20 years of service has to overlap with 20 years of marriage
When these conditions are met and the couple divorces, the military member will most likely be required to split a portion of retirement pay according to the ratio of years married compared to overall service.
Partial payment may also be available to couples who meet the 10/10/10 rule, which obeys the same requirements as above but with half as much time required.
See our Military Retirement Divorce page for more information.
Military Insurance Benefits and Divorce
A military member’s ex-spouse may be eligible for continued TRICARE coverage if they can meet the 20/20/20 rule outlined above. If the marriage and service lasted at least 20 years, each, but the overlap was less than 20 years but at least 15 (20/20/15), then the ex-spouse of the service member will be eligible for TRICARE coverage — under their own social security number — for up to an additional year after the divorce decree issuance date.
Survivor Benefit Plan (SBP)
After a divorce, a service member can still elect to name their ex-spouse as the beneficiary of their survivor benefit plan (SBP). SBP recipients receive 55% of the designated base amount of the retired pay.
VA Disability is not considered community property, and divorced spouses are not eligible to receive a portion of this benefit. However, VA disability benefits do count as income for the purposes of calculating child support amounts.
Child Support, Child Custody, and Military Divorce
During periods of active duty, the courts may consider a temporary timesharing agreement that recognizes the active-duty parent’s inability to provide child care. During these times, the other spouse may be granted temporary status as the children’s sole custodian. These arrangements may also affect the outcome of the permanent time-sharing agreement issued by the divorce decree.
When calculating child support, the military service member’s total income, including disability and retirement benefits, will be considered. However, no service member may be ordered to pay over 60% of their total military income through either child support or spousal support agreements (or both combined).
Military service members who do not pay their child support can receive enforcement action that includes forfeited pay, pay deductions, or even criminal sanctions. The service member’s superior officer may even participate in legal actions and reprimands in order to enforce current payment obligations (but not payments in arrears).
Talk to Experienced Military Divorce Attorneys
Whether you’re an active service member, retired, or a spouse of either, getting a divorce when someone has served can be more difficult and more complicated. Certain matters require careful consideration, and there may be unexpected differences compared to normal state procedures.
Talk to attorneys who are experienced in military divorce matters: New Mexico Financial & Family Law. We care about our clients, their peace of mind, and their ability to seek particular outcomes during a divorce. There is no way to make a military divorce easy, but it can be easier with our help.
Reach out to us at any time to schedule a no-obligation consultation when you call (505) 503-1637 or contact us online.