Divorce can be a complicated process under any circumstances, but when one or both spouses are members of the military, the process becomes even more complex. new york military divorce are subject to both state laws and federal regulations, which can affect everything from property division to child custody. If you're navigating a military divorce in New York, there are key differences and considerations that you may not be aware of. Here are 13 things you should know.
1. Military Divorce Requires Knowledge of Both State and Federal Laws
In New York, as in other states, divorce laws are governed by state law, but when a military member is involved, federal law also plays a role. This includes specific regulations under the Servicemembers Civil Relief Act (SCRA) and the Uniformed Services Former Spouses’ Protection Act (USFSPA). Understanding how these laws interact with New York’s state laws is crucial for ensuring a fair outcome.
2. Residency Requirements May Be Different
New York requires at least one spouse to have lived in the state for at least one year to file for divorce. However, military members may not need to meet this requirement if they are stationed in the state. This allows service members to file for divorce in New York even if they are stationed elsewhere in the country or overseas.
3. The Servicemembers Civil Relief Act (SCRA) Provides Protection
The SCRA offers protections for military members involved in legal proceedings, including divorce. It allows military personnel to delay court hearings if they are unable to attend due to deployment or active duty obligations. A court cannot proceed with a divorce case without the military member’s consent if they are on active duty, ensuring that service members’ rights are protected.
4. Military Pensions Are Treated Differently
One of the most significant differences in military divorces is the division of military pensions. Under the USFSPA, the former spouse of a service member may be entitled to a portion of the military pension. However, for the former spouse to receive direct payments, the couple must have been married for at least 10 years while the service member was in active duty.
5. Child Custody Can Be Affected by Deployment
In cases of military divorce, child custody arrangements can be influenced by deployment schedules. The non-military spouse may have primary custody during the service member’s deployment, but the military parent still has the right to request custody arrangements that reflect their ability to spend time with the children when they return.
6. Military Benefits Can Impact Spousal Support
In a military divorce, the entitlement to certain benefits, such as healthcare and housing allowances, can affect spousal support calculations. The Uniformed Services Health Benefits Program (TRICARE) may provide healthcare coverage for a former spouse, but only under specific conditions, such as a long-term marriage (10 years or more).
7. New York Courts Recognize Military Divorce as Complex
New York courts understand the complexities that come with a military divorce. They are aware of the unique challenges that active duty members face, including deployments and relocations. Courts will often work with military families to establish fair and flexible arrangements that take into account these challenges.
8. Temporary Spousal Support May Be Ordered
In military divorces, temporary spousal support can be ordered while the divorce is pending. This is especially important for spouses who may have been financially dependent on the service member. Temporary support can help ensure that both parties are able to maintain a reasonable standard of living during the divorce process.
9. Military Benefits May Be Negotiated Separately
In some cases, military benefits such as health insurance, pensions, and allowances may be negotiated separately from the standard property division and alimony. This is particularly true if the couple has been married for a long period or if the military member’s benefits are substantial.
10. Military Divorce Lawyers Specialize in Military Laws
Because military divorces involve both state and federal regulations, it's highly advisable to hire an attorney who specializes in military divorce. These lawyers are knowledgeable about the specific rules governing military benefits, pensions, and other unique issues related to military divorces.
11. Residency and Deployment May Delay the Process
While the state of New York allows military personnel stationed anywhere to file for divorce, the divorce process may still be delayed due to the member’s deployment or other military obligations. In such cases, the court may grant a delay or allow the divorce to proceed without the military member’s immediate participation.
12. Property Division May Involve More Than Just Assets
Property division in a military divorce in New York can be more complicated than in a typical divorce. In addition to dividing physical assets, military divorces may require the division of military benefits, including pensions, housing allowances, and other entitlements. These assets need to be carefully accounted for and may require the expertise of a financial specialist.
13. New York Courts Encourage Alternative Dispute Resolution
New York courts often encourage couples to consider mediation or other forms of alternative dispute resolution (ADR), especially in military divorces. Mediation can be particularly beneficial for military families, as it allows for flexibility in terms of custody arrangements and financial settlements that can accommodate the challenges of military life.
In conclusion, a new york military divorce is more complex than a civilian divorce due to the interplay of federal and state laws, as well as the unique nature of military life. Military personnel and their spouses must be prepared to navigate the challenges of military pensions, child custody issues related to deployment, and the protections offered under laws like the SCRA. To ensure a fair and equitable divorce, it is essential to seek legal counsel with experience in military divorce law, as this area involves specialized knowledge and expertise. By understanding the unique elements of military divorce, individuals can protect their rights and achieve the best possible outcome.
