Military Divorce for a North Carolina Resident: What You Need to Know

State law governs the rules for marriage and divorce—and those rules vary a little from state to state. The federal government, however, has rules for the military which apply across the nation (and globally, wherever troops are stationed). The inevitable conflict and interplay between North Carolina laws and federal rules mean that divorces are a little different when a spouse serves in the U.S. Armed Forces.

Look for These Differences in a North Carolina Military Divorce 

  • Suspension of the proceedings. The 2003 Servicemembers Civil Relief Act (SCRA) allows the North Carolina legal system to suspend a divorce proceeding for 90 days against a U.S. servicemember sued for divorce. While the court may do this on its own authority, it must grant a 90-day suspension if a servicemember stationed outside North Carolina requests a delay. If the military spouse is still overseas after three months have passed, he may ask for additional extensions, but the court is not required to grant them.
  • Legal representation. If the North Carolina court refuses to delay the divorce lawsuit under the Servicemembers Civil Relief Act, the judge must appoint a local attorney to represent the interests of the spouse in the U.S. Armed Forces.
  • Residency requirements. You can file for divorce in North Carolina if you or your spouse has been a resident here for at least six months. If one of you has been stationed at a military base or other facility in the state for six months, that period counts toward state residency.
  • Split jurisdiction. It is somewhat more likely for a military divorce that the spouses will have established residences in different states. This can be a concern if the couple has minor children together. While one spouse may qualify to file for divorce in North Carolina by meeting the residency requirements, it’s quite possible the children may live in another state with the other parent. In such a case, although North Carolina law may declare the marriage ended and divide marital assets, the legal system in the other state may be responsible for determining child custody and child support. The rules of the Uniform Child Custody Jurisdiction And Enforcement Act will be used to resolve conflicts.
  • Deployment and child custody. When a custodial parent who is a servicemember is ordered to a military base in another state, this may severely impede the other parent’s custody rights and parenting time. Often, the permission of the court will be needed for the children to relocate with the custodial parent. 

An even more severe situation emerges when the military parent is deployed outside the United States. In general, minor children will not be permitted to live in an overseas military facility even if the military parent is the custodial parent. The military parent should seek a temporary change in the custody and visitation rights ordered by the court; otherwise, his or her failure to exercise those rights for an extended period—and deployments can last over a year—can mean the permanent loss of those rights.

North Carolina child support obligations are based on each parent’s income. For a parent who is in military service, that income usually will need to be calculated to include various supplements to pay, such as housing allowances, Imminent Danger Pay, and other forms of special pay. Spousal support may or may not exclude some of these pay enhancements. A federal law—the Uniformed Services Former Spouse Protection Act—gives a former spouse some rights to claim military pension as marital property to be divided equitably during the divorce.

Let Speaks Law Firm Assist with Your North Carolina Military Divorce

As you can see, there are crucial differences between a civilian and military divorce in North Carolina. Not every divorce lawyer is experienced in handling these special cases. Speaks Law Firm is thoroughly prepared to handle complex military divorces. Our experienced Wilmington family law attorneys understand the unique challenges posed by representing active duty servicemembers, veterans, and their spouses. Call Speaks Law Firm today at 910-341-7570 or toll-free at 877-593-4233 for answers to your questions.

R. Clarke Speaks
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Trial Lawyer and Founder of Speaks Law Firm, P.C.