Navigating A North Carolina Military Divorce
Ending a marriage when one or both spouses are part of the military can be more complicated than a regular divorce. There are certain factors involved with military divorces that can impact issues around property division and child custody. If you or your spouse is an active military member, it’s important to know how this process works before you proceed with your divorce.
Our experienced military divorce lawyers at Ellis Family Law, P.L.L.C., can help. We have represented many military members going through a divorce throughout the Triangle area from our offices in Durham, Cary, Pittsboro and Wake Forest, and we can guide you through this difficult process as well.
Requirements For A Military Divorce
Like with any North Carolina divorce, there are certain requirements you must meet when filing for a divorce. For military divorces:
- Either the military service member or their spouse must live or be stationed in North Carolina for at least six months.
- Any military personnel on active duty must be served with a divorce complaint.
If you are away from home on active duty and you are served with a divorce complaint, you are protected under the Servicemembers’ Civil Relief Act (SCRA), which prevents the courts from making any default decisions about your divorce while you are unavailable. SCRA also allows for extension periods of up to 90 days from your active duty release date to respond to a complaint.
Property Division In Military Divorces
For the most part, property division functions the same for military divorces as with any other divorce. North Carolina follows the equitable distribution model, meaning each spouse should receive a fair but not necessarily equal division of all marital assets. This includes your home, finances and other marital property.
When it comes to certain military benefits such as a military pension, a nonmilitary spouse is entitled to a portion of those benefits due to the Uniformed Services Former Spouses’ Protection Act (USFSPA). The USFSPA covers military pensions, retirement pay, health benefits and commissary during a divorce. If you’re a military member and you’re worried about your spouse receiving a portion of these benefits, you should consult with an attorney who can help you protect your assets.
Military Divorce And Child Custody
Child custody may be one of the most complicated parts of military divorces as an active duty spouse may be deployed for certain periods of time. There’s a common myth that military service members don’t get custody, but that’s not the case. It is possible to have custody of your child as military personnel, and our attorneys can help you navigate this process.
Courts consider multiple factors when awarding custody, not simply whether one parent is active duty. While that will certainly be considered, they also prioritize the best interests of the child, which often includes the involvement of both parents in the child’s life.
Custody can be awarded in different ways. You can have joint legal and physical custody of your child; however, if you are deployed for active duty, your co-parent may be granted sole physical custody during your absence. Once you return, the custody arrangement will return to normal or can be revised further if necessary.
As a parent, you likely want to provide a stable and nurturing environment for your child. You deserve to be a part of your child’s life even if you’re not physically available due to your service. Our attorneys can help you protect your parental rights and seek a custodial agreement that is favorable for you and your child.
Contact Us Today To Learn More
Military divorces have their own set of unique rules and complications. To fully understand how your or your spouse’s military status may impact your divorce, it’s best to speak with an experienced military divorce attorney.
Call us at 919-688-9400 to schedule a consultation or email us online. We have offices in Cary, Durham, Pittsboro and Wake Forest.
Frequently Asked Questions About a Military Divorce
What makes a military divorce different from a civilian divorce?
- Jurisdiction/venue complications when a servicemember is stationed elsewhere or moves frequently.
- Federal protections that can slow or pause the case, especially if the servicemember can’t reasonably participate while on active duty (SCRA stays and default-judgment rules).
- Military retired pay division rules governed by federal law (USFSPA) and enforced through DFAS if properly drafted.
- Benefits logistics (TRICARE, commissary/exchange/MWR access) that follow specific eligibility rules after divorce.
Who can file for divorce if one spouse is active duty or stationed out of state?
- At least one spouse must have been a North Carolina resident for at least 6 months before filing, and
- For a typical “no-fault” absolute divorce, the spouses must have lived separate and apart for one year.
How are military retirement benefits divided under the USFSPA?
- USFSPA does not automatically grant a former spouse a share—there must be a qualifying court order.
- The commonly-cited “10/10 rule” is about DFAS direct payment (whether DFAS can pay the former spouse directly), not whether the retirement can be divided at all. DFAS explains the enforcement requirements.
Can former spouses keep military healthcare or base privileges after divorce?
- TRICARE: Former spouses generally lose TRICARE at divorce unless they qualify under the 20/20/20 or 20/20/15 rules (and must update DEERS).
- Base privileges (commissary/exchange/theater/MWR): Military OneSource summarizes that an unremarried former spouse may keep certain privileges if they meet the 20/20/20 requirements.
What special protections does the Servicemembers Civil Relief Act (SCRA) offer?
- Protection against default judgments
- If the servicemember doesn’t appear, the court generally must require an affidavit regarding whether the defendant is in military service, and additional safeguards apply before entering a default judgment.