For military families, divorce can present its own unique set of challenges. Certainly, active deployment and frequent relocation can complicate divorce proceedings, not to mention that, depending upon the circumstances involved, both state and federal law may apply to military divorces. Let’s take a closer look at some issues that may arise during military divorces and what the law says about these matters.
How to File for Divorce in North Carolina When in the Military
Military members are often on the move. This may mean active deployment, or frequent relocations as a result of assignments to new areas. Because of these frequent moves, it can be difficult to know where to file for divorce – which as many people know, is the first step of the process.
Most states have residency requirements in order to file for divorce – and North Carolina is no different. In most states, either the military member or their spouse must reside in the state to qualify for divorce there, and different states have different rules about how long someone must be a resident before being able to file.
In North Carolina, the law requires that either the military member or their spouse must have been a resident for at least six months before being able to file for divorce. In North Carolina, residency means living in a state with the intent to make it home. In some cases, such as when one is on an extended visit with family or in a state for a prolonged work project, there is no intent to establish residency and remain for the long term. When courts look for proof of residency, they will consider things like voter registration, obtaining a state driver’s license, tax payments, or other similar activities.
If it is established that at least one spouse in a military marriage has residency in North Carolina, they may be eligible to file for divorce. However, military or not, North Carolina law also requires that a couple be legally separated for at least one year before officially filing for divorce. Essentially, legal separation means that the couple has lived separate and apart for at least one year without the intention of resuming the marriage.
After establishing that these two factors have been met, one spouse may officially file for divorce – but it’s important to remember that particular rules may apply for service in the case of military families.
The Servicemember Civil Relief Act
The Servicemember Civil Relief Act, or SCRA for short, is a federal law that plays an important role in ensuring that the rights of service members are protected during active duty, including those in the National Guard and the reserves, when called to active duty. Two protections relevant to divorce actions include a stay of civil proceedings when necessary and relief from civil judgments if warranted.
In normal circumstances, when one spouse is not actively deployed, divorce papers will be served by the spouse who has filed, and a response within a specific timeframe is required. Under the SCRA, however, the timeline to respond and proceed with the divorce may be extended for service-related reasons. Additionally, in certain situations, active-duty service members may be protected from default judgments that would normally result from a failure to respond to a lawsuit or appear for a trial.
In order to understand how these provisions and protections might apply to you, it is important to contact an attorney who knows and understands divorce law – both in North Carolina and as it applies to the military. Doing so will ensure that you have peace of mind knowing that you are preserving and protecting your rights under the law.
Property Division in Military Divorces
Another way military divorces may differ from normal civil divorces is that members of the Armed Forces receive various benefits that may factor into the division of marital property during a divorce.
In North Carolina, the process of dividing property is known as equitable distribution. While the term may sound complicated, in essence, it means that a court will attempt to divide marital assets and debts in a way that is fair to all parties during a divorce. This doesn’t necessarily mean a court will make an exact, equal, 50-50 division of the property. Instead, the court may consider a variety of factors and may award property and debt in its discretion to attempt to ensure the most just and equitable outcome.
During a military divorce, a non-military spouse may be entitled to a share of the military spouse’s retirement benefits. As a result of the Uniformed Services Former Spouse’s Protection Act (USFSPA for short), state courts, including courts in North Carolina, have the authority to allocate military retirement benefits to non-military spouses when warranted.
Understandably, these processes and procedures may be complex. Military retirement, pay, and other benefits can be considered a substantial asset during a divorce, and having an attorney who knows and understands the law and can ensure that all rights are protected will be essential. Regardless of whether you are a military service member seeking to protect your retirement or a non-military spouse asserting a claim to what you believe is your rightful share of the marital assets, you will want to make sure you know and understand the law and how it pertains to your particular circumstances.
Child Custody Issues in Military Divorces
Child custody issues can also become particularly complicated in military divorces. Navigating child custody matters when there is the potential for one or both parents to be deployed or relocated can be complicated. As a result, military families will likely need a custody agreement tailored to their specific circumstances.
While this may seem daunting at first, the good news is that increasingly, military and non-military couples are negotiating custody arrangements and resolutions to a variety of other divorce-related issues entirely outside of court. Methods of alternative dispute resolution may include mediation, lawyer-led settlement negotiations, or collaborative law, to name a few. Each of these methods varies in its particular procedure, but all share the goal of reaching an agreement out of court that addresses all of the issues that are important to a couple during divorce.
Negotiating an agreement outside of court typically saves money and time, reduces stress, and gives couples the freedom and flexibility to truly address their issues in a way that works best for their family, and this can be particularly helpful for military families. After all, military families often have special circumstances that call for unique considerations in a custody agreement.
For example, when one spouse is frequently away from the family due to military service, a custody agreement may include provisions for using technology, like FaceTime, Zoom, or other forms of virtual visitation. In addition, an agreement can address who will pay for transportation costs, how often visits will occur, and any other provisions that may suit the particular family. Agreements can also include helpful contingency plans for situations when one parent cannot attend a visitation or exercise custody due to a military assignment.
Certainly, when drafting such a custody plan, it will be important to choose an attorney who understands the unique challenges faced by military families and can offer advice on what arrangements and agreements might best address those issues.
These are only a few of the many issues that may arise during a military divorce. As servicemembers already know, military life is rewarding and essential – but it also presents unique complications that many civilians don’t encounter. The good news is that whether you are a servicemember yourself, or if you are married to one, you never have to feel alone as you contemplate a divorce. At The Law Office of Dustin McCrary, we’ll meet you where you are and walk with you each step of the way.
Call The Law Office of Dustin McCrary Today
We honor and respect military servicemembers and their families at the Law Office of Dustin McCrary. We value your tremendous contribution to our country’s safety and the sacrifices it takes to do so. It’s also why we are passionate about helping military families through the divorce process as smoothly and successfully as possible as they move toward a brighter chapter ahead. If you need assistance, we’re here for you. We would love to talk to you, learn your story, and let you know how we can help. If you’re ready to get started, give us a call today. We look forward to speaking with you soon.