Special Rules for Active Duty Service Members (2024)

A common question for families with spouses in the service is determining where to file for divorce. Many military families move around a lot and do not necessarily meet the minimum time requirement to establish residency in order to file. For such couples, there is a presumption that where they enlisted can be used and is their home jurisdiction. Unless there is clear evidence that the couple intended to put down roots elsewhere.

If you are a military member and are deployed, you likely have a few options for jurisdiction when filing for divorce. These might include:

• File in the state where you last resided for six months or more
• File in the home state where you pay taxes
• Allow your spouse to file where he or she resides in the U.S.
• If you’re stationed in the U.S., file in the state in which you are stationed, even if you’re not a resident of that state.

Many military members have these additional options, because states frequently eliminate the residency requirement when an active duty service member wants to file for divorce.

When going through a divorce clients often ask attorneys what can and will be divided. The general rule is that all items considered “martial property” are divisible; a definition we get from the law. Of course there are exceptions to this rule and as a result, however this is not always cut and dry. This becomes even a bit more complicated when one party (or both) are service members.

Specifically, this becomes an issue when dealing with military retirement benefits. Military retirement benefits are subject to division as marital property, military disability payments however, are not. These two intersect when a service person opts to change his or her retirement payout into disability payments. What a spouse previously thought he or she was entitled to could now be protected property. It is important to know what is classified as what type of benefit and plan for an unexpected change.

Family life is complicated enough when one spouse is active in the military. However, when a military couple divorces the complications can become even more significant.

A divorce attorney can help a divorcing military spouse:

• Determine if a divorce proceeding can be filed in Pennsylvania. Generally, you can file for divorce in Pennsylvania if one spouse lives in the Commonwealth or if a military spouse has a military home of record in Pennsylvania for at least six months before filing for divorce.
• Comply with the mandatory waiting period for military families. Typically, there is a 90 day waiting period to obtain a divorce if one spouse, or both spouses, are active in the military. This waiting period applies even if you have been living apart for more than two years.
• Resolve custody, property and financial issues. Many divorce issues facing military families are the same as those faced by civilian families. Child custody and visitation issues must be resolved, property must be divided and alimony and/or child support arrangements must be finalized.