Military divorce in New York is subject to a number of specifically established rules to support service members and their spouses’ rights. The state’s family law also plays an essential part in regulating certain aspects of the process. For you to figure out how these rules and regulations coordinate, we offer this military divorce guide with a brief description of everything you may need.
Protection from military divorce proceedings in New York
Besides state laws, divorce for military members is also governed by federal laws, the most significant being the Servicemembers Civil Relief Act (SCRA). The name speaks for itself — the act comprises provisions that protect military members from civil actions while deployed, such as divorce or modification of existing orders. In particular, if a service member is on active duty, divorce proceedings can be postponed up to 60 days after the end of a mission.
In any action for divorce, the court can issue a divorce decree if one of the spouses meets the residency requirements. There are several options to be eligible for filing a marriage dissolution case in one of the New York courts:
- A couple was married in New York State, and one of the parties has been a resident of the state for one preceding year.
- The parties have lived in New York State as a husband and wife, and one of them has been a resident of the state for one year before the action.
- A reason for the action occurred in this state, and one or both spouses have been residents of New York for one year before the action.
- Either spouse has been a resident of the state for two years preceding the action.
Divorcing a military member on active duty could be more challenging because they might not be stationed in New York for a sufficient period. Fortunately, federal laws, together with military divorce laws, allow military members to file for divorce in New York if they are stationed here but have legal residence elsewhere.
Serving an active duty spouse
Filing for divorce in the military has peculiar features compared to a civil marriage dissolution procedure. The significant difference is serving divorce papers on a military member on active duty or deployed overseas. In New York, the courts will have jurisdiction over a divorce case if the documents are handed personally to a service member.
In the course of any divorce process, a military spouse has to choose a third party to deliver the copy of the summons and complaint because New York laws prohibit any party involved in the case to do it. If the spouses have an uncontested divorce, a military member can sign an affidavit of service, eliminating the need for the summons delivery.
Grounds for a military divorce in New York
The grounds for initiating a military divorce case are the same as for civilian cases. Most of the time, couples choose to end their relationship based on an irretrievable marriage breakdown. This reason requires that one of the spouses state under oath that the marriage has been broken down for at least six months. A couple must also agree on all terms of their marriage dissolution to use this ground.
Other statutory grounds include fault-based reasons that need to be corroborated by substantial proof or separation agreements:
- Abandonment for one year;
- Confinement in prison for three years;
- Separation for one year.
In New York, the property is divided based on fairness and not always in half. Suppose a couple does not have an agreement about how to divide their assets after separation. In that case, the court will decide the issue following all presented financial information and several important factors. They include the income and individual property of each spouse, future economic circumstances, tax consequences, and the marriage duration.
One of the main difficulties in a divorce in the army, air forces, navy, or other military branches is the division of a military member’s retirement benefits. They are considered marital property from the start of a married relationship and must be divided between spouses into shares determined by the USFSPA. This federal law has power only if a couple has been married for ten years or more.
If the marriage lasted less than ten years, the division of these benefits is governed by state laws. In theory, a military spouse is entitled to half of the pension that a service member received between the wedding and the separation date. In reality, this amount may change depending on the value of other property assigned to the spouses. Sometimes only an experienced lawyer can help resolve confusing issues regarding property division.
Child custody and support
Custody decisions in New York usually stem from the child’s best interests. Divorce in the military with children is no exception and is subject to the same rules as all other custody cases. A judge evaluates all circumstances and decides what is best for a particular child. According to popular belief, children need a stable environment where they can develop, receive education, and be a part of the local community.
A military family must provide their children with stability after divorce. That is why they have to draft a parenting plan with provisions about custody changes for a period when a military member would be deployed or assigned on a mission. If both parents are in the military, they need to choose a third party to take care of a child during deployment.
All service members are obliged to provide their children with financial support following the court orders. Child support is calculated according to the state guidelines and charts based on the number of children and the parents’ combined adjusted income.
For example, if parents earn $100,000 annually and have one child, the non-custodial parent’s obligation is $17,000 a year. Child support usually continues until a child turns 21.
Alimony in a divorce where one spouse is in the military is awarded upon request of one of the parties if a judge determines its need. New York laws have guidelines for spousal maintenance calculation, but they can be altered when the results of such calculations are unfair toward one of the parties. Alimony may be paid in a lump sum or periodic payments.
The spousal support obligation of a military member in the absence of the court order is regulated by a branch of the armed forces where that member serves. A spouse who is divorcing a soldier will likely receive a share of the service member’s pay and BAH (basic housing allowance).
The duration of alimony payments usually depends on the length of the marriage, the age, health, earning capacity, tax consequences, and other financial obligations such as child support. It ends when a dependent spouse remarries or dies or upon the death of the paying spouse.
Filing procedure for military members
A person who files for divorce is called a Petitioner, and the other spouse is the Respondent. A service member’s first step is to ensure that either of the spouses meets the residency requirements. After that, he or she may start the process by filing court-specific forms. They include Summons with Notice or Summons and Complaint and any agreements between the spouses.
The copies of documents must be delivered by personal service to a Respondent in 120 days. This task can be fulfilled by a certified process server, a sheriff, or a third party who is 18 years old. Upon delivery, an Affidavit of Service must be completed and then submitted to the court. A Respondent can sign an Affidavit of Defendant stating that they agree with a Petitioner’s terms.
After the other spouse has signed an affidavit, the Petitioner can file all the remaining documents with the Clerk’s Office. The procedure described above is only suitable for amicable, uncontested divorces. The rest should consult an attorney not to miss important aspects of property division or alimony.
Rights and benefits of a military spouse in a divorce
One of the paramount issues in any military divorce is the designation of rights and benefits that a service member’s spouse is eligible for. Military spouse entitlements include access to medical treatment in military hospitals, exchange, and commissary privileges under the 20/20/20 rule.
These figures mean 20 years of marriage, 20 years of military service, and a 20-year overlap of the service and marriage. Besides, since all marital property in New York is subject to division, retirement pay that a military member acquired during the marriage can be divided between spouses after their divorce.
How we can help
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Frequently Asked Questions
How long does it take to get a military divorce in New York?
Since there is no waiting period in New York between filing for divorce and obtaining a final decree, spouses can end their marriage in 2-3 months if they find a compromise on all issues. Couples with unresolved contested issues, such as alimony or child custody, will spend on average 7-12 months.
How much does a military divorce in New York cost?
The cost of divorce in New York State largely depends on its complexity. The less conflict there is between the spouses, the less money they will pay. Uncontested cases without a lawyer are the cheapest and consist mostly of court fees ($335). The price grows if a lawyer is involved — from $2,000 for amicable cases to $18,000 for contested ones.
Where to file a military divorce case in New York?
If one of the spouses meets the residency requirements, they can file in one of the New York courts that handle family matters. There are Supreme Courts situated through each of New York’s 62 counties. You can choose the court that is territorially the closest to where you and your spouse reside.
What makes military divorce in New York different?
In New York, military personnel on active duty are protected from civil proceedings and default judgments until 60 after they are free from service. Their spouses also have some protections and benefits (medical care, insurance, etc.) that a civilian family does not have. Besides New York laws, specific acts (SCRA, USFSPA) ensure the rights of both sides.