Military families face distinct challenges when navigating divorce in North Carolina. With the state hosting eight military bases and approximately 100,000 active-duty personnel, understanding how military service affects divorce proceedings is essential for servicemembers and their spouses. This comprehensive guide explores the patterns, legal requirements, and special considerations that shape military divorce cases in North Carolina.
Military Divorce Rates and Patterns
According to Pentagon data, the divorce rate among military personnel is roughly equivalent to civilian divorce rates. In 2018, approximately 3% of married active-duty troops divorced by year's end, continuing a downward trend that began a decade earlier. For enlisted male servicemembers, the rate decreased from 3.3% in 2009 to 2.7% in 2018. Female military members experience slightly higher divorce rates, with 6.3% divorcing in 2018.
North Carolina's significant military presence means family law attorneys in the state regularly handle military divorce cases. The unique demands of military life, including deployments, frequent relocations, and extended separations, create specific patterns in how these divorces unfold and the issues that arise during proceedings.
Residence Requirements and Jurisdiction
One of the first questions military couples face is where to file for divorce. North Carolina law requires that either spouse must have resided in the state for at least six months before filing. For military personnel, establishing residency can be more complex than for civilians.
Residency for Military Members
Living or being stationed at a military installation in North Carolina for six months satisfies the residency requirement, provided the servicemember or spouse intends to make North Carolina their home. Courts look for evidence of residency through voter registration, state driver's licenses, tax payments, and similar indicators. Under the Servicemembers Civil Relief Act, military personnel can maintain their home of record for voting and taxation purposes regardless of where they're stationed, which sometimes complicates residency determinations.
Choosing Where to File
Military couples often have connections to multiple states, where they currently live, where they were married, where they own property, and their states of legal residence. While couples can technically file in any state where they meet residency requirements, filing in North Carolina where they currently live is typically more practical and cost-effective, making it easier to attend hearings and meet with attorneys.
The Separation Requirement in Military Divorces
Like all North Carolina divorces, military couples must live separately for one year before filing for absolute divorce. This separation period requires living in different residences with at least one spouse intending for the separation to be permanent.
Deployment and Separation
A critical point for military families: deployment generally does not count as legal separation unless the couple intended the deployment to mark the beginning of their permanent separation. Simply being apart due to military orders does not satisfy the one-year separation requirement for divorce purposes.
Servicemembers Civil Relief Act Protections
The Servicemembers Civil Relief Act provides important protections for active-duty personnel in legal proceedings, including divorce. These federal protections ensure that military obligations don't unfairly disadvantage servicemembers in court.
Stay of Proceedings
When a servicemember's military duties materially affect their ability to appear in court or participate in proceedings, they can request a stay (postponement) of the case. The initial stay must be granted for at least 90 days if proper requirements are met. Additional stays may be granted depending on circumstances.
To obtain a stay, the servicemember must demonstrate that current military duties materially affect their ability to appear and provide a statement from their commanding officer confirming that military duty prevents appearance and that leave is not authorized.
Service of Process
Serving divorce papers on active-duty military personnel requires special considerations. When a servicemember is stationed overseas, the Hague Convention on Service Abroad may apply. The SCRA prevents default judgments from being entered against servicemembers who haven't responded to divorce complaints due to active duty obligations.
Property Division and Military Benefits
North Carolina follows equitable distribution for dividing marital property, meaning assets are divided fairly though not necessarily equally. Military divorces involve unique assets that require special handling under federal law.
Military Retirement and the USFSPA
The Uniformed Services Former Spouses' Protection Act allows state courts to treat military retirement pay as marital property subject to division. A non-military spouse may be entitled to a portion of the servicemember's retired pay.
The "10/10 rule" allows direct payment from the Defense Finance and Accounting Service when the couple was married for at least 10 years overlapping with 10 years of creditable military service. Even without meeting this threshold, courts can still award a share of retirement, the payment simply flows between the spouses rather than directly from DFAS.
Military Pay and Allowances
When calculating support obligations or dividing assets, courts consider various forms of military compensation:
- Basic pay (taxable wages)
- Basic Allowance for Housing (BAH) - non-taxable
- Basic Allowance for Subsistence (BAS) - non-taxable
- Special pays and bonuses
- Thrift Savings Plan accounts
The non-taxable nature of BAH and BAS requires special consideration when applying child support guidelines, which assume all income is taxable.
Survivor Benefit Plan
The Survivor Benefit Plan protects a former spouse's share of military retirement after the servicemember's death. Divorce settlements should address SBP elections with clear deadlines to ensure the non-military spouse's financial protection.
Child Custody Considerations for Military Families
Child custody represents one of the most challenging aspects of military divorce. Courts prioritize the child's best interests while accounting for the unique demands of military service.
Custody Despite Military Service
A common misconception suggests that military parents can't obtain custody due to deployment potential and irregular schedules. This isn't true. North Carolina courts can award custody to military parents, and many servicemembers successfully maintain custody or shared parenting arrangements.
Courts consider multiple factors beyond military status, including the child's relationship with each parent, each parent's ability to provide stability, and the child's adjustment to home and school.
Temporary Custody During Deployment
When the custodial parent deploys, temporary custody arrangements become necessary. North Carolina law allows courts to grant temporary custody to the non-military parent during deployment, with the original arrangement resuming upon the servicemember's return.
Military parents often designate caregivers through Family Care Plans as required by military regulations. However, courts have consistently held that Family Care Plans or powers of attorney cannot override the other parent's custody rights. Non-custodial parents typically have priority over grandparents or stepparents for temporary custody during deployment.
Visitation and Parenting Plans
Effective parenting plans for military families account for duty hours, training cycles, deployments, and potential relocations. Plans should include:
- Local visitation schedules for when both parents are in the area
- Long-distance arrangements for when one parent relocates or deploys
- Provisions for virtual visitation through video calls
- Make-up time for missed visitation due to military obligations
- Clear transportation responsibilities and costs
- Holiday and vacation schedules that accommodate military leave
North Carolina's Uniform Deployed Parents Custody and Visitation Act provides additional framework for addressing deployment-related custody issues, including delegation of visitation rights to family members with close relationships to the child when the servicemember cannot exercise visitation personally.
Child Support and Spousal Support
Military divorces involve the same support obligations as civilian divorces, but military pay structures and regulations create unique considerations.
Child Support Calculation
North Carolina uses income-based child support guidelines that consider both parents' gross income, healthcare costs, and childcare expenses. For military parents, gross income includes basic pay and most regularly received allowances.
When a Reservist or Guard member is mobilized, income may change dramatically, either increasing or decreasing depending on civilian employment. These changes may warrant modification of support obligations, though no automatic reduction occurs upon mobilization.
Military Support Regulations
Each military branch has interim support regulations requiring servicemembers to provide financial support to dependents even without a court order. However, court orders supersede these regulations and provide the most enforceable support arrangements.
Enforcement Through Involuntary Allotment
When child support arrears equal two months' support, an involuntary allotment can attach military pay, including basic pay, bonuses, BAH, and BAS. This wage withholding is often easier to obtain than traditional garnishment and can attach more income.
Alimony Considerations
North Carolina courts may award post-separation support and alimony based on financial need and ability to pay. Military pay, allowances, and benefits factor into these determinations. Changes in duty station, promotion, or separation from service can affect support obligations and may warrant modification.
Healthcare and Other Benefits
Military dependents receive healthcare through TRICARE, the military's health insurance program. After divorce, former spouses may qualify for TRICARE coverage under the 20/20/20 rule (20 years of marriage, 20 years of military service, and 20 years of overlap) or the 20/20/15 rule (with at least 15 years of overlap, providing one year of transitional coverage).
Children remain eligible for TRICARE as long as they meet dependency requirements, regardless of their parents' marital status.
Commissary and Exchange Privileges
Former spouses who meet the 20/20/20 criteria retain access to military commissaries and exchanges. These benefits can provide significant cost savings and should be considered when negotiating divorce settlements.
Practical Guidance for Military Divorces :
Military families should gather comprehensive documentation including Leave and Earnings Statements, retirement point statements, TSP account information, deployment orders, BAH documentation, and Family Care Plans. This documentation helps attorneys accurately assess income, benefits, and service obligations that affect the divorce.
Alternative Dispute Resolution
Mediation and collaborative divorce offer military couples opportunities to craft creative solutions that accommodate military schedules and obligations better than court-imposed orders might. These methods typically cost less, resolve faster, and give couples more control over outcomes.
Timing Considerations
Military families should carefully consider timing when filing for divorce. Filing immediately before a deployment may create complications, while waiting for return from deployment might delay resolution unnecessarily. An experienced attorney can help assess the best timing given specific circumstances.
Your Rights and Options
Military divorce in North Carolina requires navigating both state family law and federal military regulations. The intersection of these legal frameworks creates unique challenges but also provides specific protections for servicemembers and their families.
Whether you're an active-duty servicemember, a military spouse, or a veteran, understanding how military service affects divorce proceedings empowers you to make informed decisions and protect your interests. The patterns observed in military divorces, frequent relocations, deployment concerns, complex benefit divisions, and custody arrangements accommodating military obligations, require attorneys with specific knowledge and experience in military family law.
Given the significant stakes involved in divorce, financial security, parental rights, and family stability, military families benefit greatly from working with legal counsel familiar with both North Carolina divorce law and the unique aspects of military service. This specialized knowledge ensures that servicemembers can fulfill their military obligations while protecting their rights, and that military spouses receive fair treatment in property division, support, and custody matters.
The challenges of military divorce are real, but with proper guidance and understanding of applicable laws, military families can navigate this difficult transition while protecting their interests and maintaining focus on their children's well-being and their own futures.