Lawyer For Military Divorce in New York, NY

Military divorces in New York are similar to a regular divorce, although there are certain issues that are governed by federal law.

First, divorce proceedings against a military member in active duty can be postponed up to 60 days after the end of a mission under the Servicemembers Civil Relief Act (SCRA).

Second, retirement pay of military personnel is distributed in accordance with federal law, the Uniformed Services Former Spouses’ Protection Act (USFSPA). Availment of other military benefits after divorce are also governed by USFSPA.

Postponement of Divorce Proceedings under SCRA

Under the SCRA, divorce proceedings initiated against a military member in active duty may be postponed up to 60 days after the end of mission. For this reason, a military member who has been served with an action for divorce cannot be declared under default by the court because of SCRA. However, a military member may waive this right by executing an affidavit of service, eliminating the need to be served summons in an uncontested divorce.

Marital Division of Property under USFSPA

UFSFPA defines marital property as property acquired or earned during marriage. As such, the retirement pay a military personnel earns during marriage is considered as marital property.

In cases of military divorce, if the couple have been married for at least 20 years, the military spouse served in the military for at least 20 years, and there is an overlap of the marriage and the service to military of at least 20 years, the non-military spouse can access the same benefits as the military spouse for life, provided they do not remarry. These benefits include healthcare, commissary and exchange privileges, and a portion of the spouse’s retirement pay. This is known as the 20/20/20 rule.

If the marriage does not fall under the 20/20/20 rule but it lasted for at least 10 years with an overlap of at least 10 years of military service for the military spouse, the non-military spouse can receive direct payments of a portion of the retirement pay from the Defense Finance Accounting Service (DFAS). This allows the non-military spouse to receive direct payments from DFAS without the intervention of the ex-spouse, which prevents any interference from the ex-spouse and gives the non-military spouse a legal right to claim directly from the government without the assistance of the military spouse.

Under the 10-year rule, the former non-military spouse is only entitled to a portion of the military pension, unlike a non-military ex-spouse covered by the 20/20/20 rule who is entitled to benefits such as healthcare and commissary and exchange privileges, in addition to the military pension, for life.

Military Divorce Negotiations

Despite the rules provided by UFSFPA, a non-military ex-spouse may still receive a portion of the military pension depending on divorce negotiations. It would depend on the value of the other marital property retained or received by the non-military and military spouse. However, in this case, the DFAS will not pay directly the non-military spouse the pension. Pension will be released directly to the military spouse, who will then turn over a portion of it to the non-military spouse, in accordance with the divorce agreement.

Other Effects of Military Divorce

Affected benefits upon finality of divorce are:

Installation Housing. When family members move out due to the divorce, installation family housing will typically be lost.
Moving Costs. If the non-military spouse lives with the military spouse overseas, the military may be charged the cost of the non-military spouse returning home from an overseas duty station.
Healthcare. A non-military ex-spouse may buy up to 36 months of temporary health care coverage through the Department of Defense Continued Health Care Benefit Program after losing Tricare benefits due to the military divorce. Eligible children may receive Tricare benefits until 21 years old (or 23 years old if enrolled in college).

Residency and where to file a military divorce in New York

Military families often have multiple connections to different states, which can complicate the question of where to file. To file a divorce in New York, the residency requirements of Domestic Relations Law (DRL) §230 must be met. Generally, one of the spouses must have lived in New York continuously for at least one or two years before filing, depending on the circumstances of the marriage and the grounds. Active duty service members stationed at a New York installation, or who maintain New York as their legal state of residence on their Leave and Earnings Statement (LES), can typically establish New York jurisdiction.

Because military families may also qualify to file in another state, such as the state of legal residence of the service member or the state where the non-military spouse lives, choosing the right forum can have important consequences. Some states treat military pensions, taxes, and child custody jurisdiction differently. An experienced military divorce attorney can analyze where filing makes the most strategic sense before any papers are served.

Grounds and the divorce process in New York

New York permits no-fault divorce under DRL §170(7) based on the irretrievable breakdown of the marriage for at least six months. Fault grounds under DRL §170, such as cruel and inhuman treatment, abandonment, and adultery, remain available but are rarely used today. The procedural steps for a military divorce mirror a civilian divorce in New York: filing a Summons and Complaint or Summons with Notice, serving the non-filing spouse, exchanging financial disclosure under DRL §236, addressing custody and support under DRL §240, and resolving equitable distribution under DRL §236 Part B.

What differs in a military case is the timing and service of process. Under the Servicemembers Civil Relief Act (SCRA), an active duty service member cannot be defaulted simply because they did not appear, and a court may stay proceedings while the service member is unable to participate due to deployment or operational duties. Service of process on a deployed member can also be logistically challenging and may require coordination with the unit's legal assistance office.

Custody, visitation, and deployment

Child custody in New York is governed by the best interests of the child standard under DRL §240. Military service introduces unique factors a court will weigh, including the likelihood of future deployments, the availability of an extended family network during deployments, and the impact of permanent change of station (PCS) orders on stability for the child. New York courts cannot use a parent's military service or deployment, by itself, as a sole basis to modify custody to the detriment of the service member parent.

Family Care Plans, which are required of certain service members with dependents, should align with any custody order. Many military parents include language in their parenting agreements addressing virtual visitation during deployment, communication with the child while overseas, and temporary delegation of parenting time to a designated family member when the service member is unavailable. Courts can also adopt parenting time provisions that automatically resume the service member's regular schedule when they return from deployment.

Jurisdiction under the UCCJEA

Custody jurisdiction is governed by the Uniform Child Custody Jurisdiction and Enforcement Act, codified in New York at DRL Article 5-A. The home state of the child generally has jurisdiction. Frequent moves driven by military assignments can complicate this analysis, and the court considers the child's connection to New York, not the parent's state of legal residence.

Child support and spousal maintenance considerations

Child support in New York is calculated under the Child Support Standards Act, which uses gross income to determine a presumptive amount. For service members, gross income includes base pay, Basic Allowance for Housing (BAH), Basic Allowance for Subsistence (BAS), and certain special pays. Combat-zone tax-exempt pay still counts as income for support purposes even though it is not taxed federally. Reviewing the LES is essential to capture all sources of income accurately.

Spousal maintenance, calculated under DRL §236 Part B(6), follows guideline formulas based on the parties' incomes and the length of the marriage. For service members, maintenance can be set up to coordinate with the pension division ordered under USFSPA, so the non-military spouse is not double-counted or under-compensated when the service member retires.

Survivor Benefit Plan and life insurance

The Survivor Benefit Plan (SBP) is an annuity that continues a portion of the service member's retirement pay to a designated beneficiary after the service member's death. Without an SBP election, a former spouse's share of the pension stops at the service member's death. A divorce decree can require the service member to elect former spouse coverage under SBP, but the election must be made within one year of the divorce, and the former spouse should file a deemed election with DFAS to protect against missed deadlines. Service members and their counsel should also consider whether Servicemembers Group Life Insurance (SGLI) beneficiary changes are appropriate.

Tricare and healthcare after divorce

Beyond the 20/20/20 rule discussed above, the 20/20/15 rule provides transitional healthcare for a non-military former spouse where the marriage and the service overlapped for at least 15 years. Eligible former spouses receive one year of transitional Tricare coverage. After Tricare ends, the Continued Health Care Benefit Program offers up to 36 months of premium-based coverage. Planning for these transitions during settlement negotiations avoids gaps in coverage.

Common mistakes in military divorce

Drafting pension division language that does not satisfy DFAS requirements, resulting in rejected direct-pay orders
Failing to address the "frozen benefit" rule that applies to certain post-2017 divisions of military retired pay
Overlooking the one-year deadline to elect former-spouse SBP coverage
Ignoring SCRA protections when one spouse is deployed, leading to vacated default judgments
Excluding BAH and BAS from child support income calculations
Forgetting to update beneficiary designations on SGLI, TSP, and other federal accounts
Underestimating the impact of future deployments on a long-term parenting schedule

Documents to gather for a military divorce

Recent Leave and Earnings Statements (LES) showing base pay, allowances, and special pays
Career history, including dates of service and any breaks in service
Most recent Retirement Points Statement for Reserve and Guard members
Tricare enrollment records and dependent ID information
Thrift Savings Plan (TSP) statements
SGLI beneficiary designations
Family Care Plan and any deployment orders
State tax returns reflecting the service member's state of legal residence

When to involve a New York military divorce attorney

Military divorce sits at the intersection of New York family law and federal statutes including SCRA and USFSPA. An attorney familiar with both can help with jurisdictional strategy, drafting pension division orders that DFAS will accept, structuring child custody around deployment realities, and protecting the long-term financial interests of both spouses. Whether you are the service member or the non-military spouse, careful planning at the outset of the case can prevent costly mistakes that are difficult to fix after the judgment is entered.

Military divorce can be a complex matter because of several federal laws that govern the distribution of marital property in cases when one spouse is in active military duty. Having an experienced military divorce lawyer beside you to help in the computation of the marital distribution will ensure that your rights are protected during divorce negotiations. Should you need assistance, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].