Military divorces involve additional legal complexities compared to civilian divorces in New Mexico.
The first step to handling a military divorce and achieving a fair outcome is to understand these differences, especially with respect to the aspects of the process that fall under the jurisdiction of federal law rather than state law. Certain federal legal protections are afforded military personnel and military benefits must be factored into support and marital estate calculations, for instance.
Most divorces in New Mexico require legal assistance at some point but, with military divorces, the additional complexities often increase the need for the help and support of a seasoned military divorce lawyer.
Key differences between military and civilian divorces
Military divorces are governed by the Uniformed Services Former Spouses’ Protection Act (USFSPA), which is a federal law. Let’s take a quick look at how this affects divorces compared with standard civilian divorces.
Jurisdiction and where to file for divorce
In a standard divorce, spouses typically file in the state where they reside. In a military divorce, the service member or their spouse can file for divorce in:
- The state where the service member is stationed.
- The state where the service member claims legal residence (home of record).
- The state where the non-military spouse resides.
New Mexico courts may have jurisdiction if one spouse meets the residency requirements.
The division of military benefits
Military pensions and benefits add complexity to the marital property division calculations in New Mexico divorces:
- Military pensions: New Mexico courts can divide military pensions as marital property, just like standard pensions, but with some important differences. The “10/10 Rule” means that if the marriage lasted at least 10 years and overlapped with 10 years of military service, the Defense Finance and Accounting Service (DFAS) will send payments directly to the former spouse. Otherwise, the service member pays the amounts directly.
- Healthcare and other benefits: Former spouses may qualify for Tricare, commissary, and exchange privileges depending on the length of the marriage and service (e.g., full benefits may apply if the marriage lasted at least 20 years, the military member served at least 20 years that count toward retirement pay, and the marriage overlapped with the military service for at least 20 years.)
Child custody and support
In standard civilian divorces, child custody, visitation, and child support are often among the most complex matters to resolve. In military divorces, other layers of complexity add to the situation.
For instance, military deployments and relocations can often complicate custody arrangements. Parenting plans may need to account for military service obligations. For instance, long-distance co-parenting and virtual visitation may be required when one parent is deployed far from home.
Child support calculations in New Mexico need to account for military income(s), including military pay and allowances. This includes the Basic Allowance for Housing (BAH), Basic Allowance for Subsistence (BAS), and other military compensation.
Spousal support (alimony)
Spousal support or alimony in New Mexico is typically payable from the higher-earning spouse to the lower-earning spouse in a divorce. Multiple factors affect the amount and duration, such as the length of the marriage and the ages of the spouses.
In military divorces, military allowances, such as the Basic Allowance for Housing (BAH), Basic Allowance for Subsistence (BAS), and other military compensation may impact alimony calculations as well as the incomes of those concerned.
Similarly, military deployment and combat pay can fluctuate, also potentially complicating support calculations.
Legal protections and enforcement with military divorces
In civilian divorces, a deadline applies in which defendants must respond to a plaintiff’s divorce petition—or be held in default.
The Servicemembers Civil Relief Act (SCRA) protects active-duty service members from being held in default for not responding to a divorce petition. The New Mexico courts may postpone proceedings if military duties prevent participation in the divorce process.
When it comes to the enforcement of court orders, military divorce orders must comply with both state and military regulations.
Provided the military divorce order meets state and federal regulations, military personnel who do not comply with child support or spousal support orders can face wage garnishment just like civilians—but through the DFAS (military payroll system).
The process for getting a military divorce in New Mexico
The process of filing for a military divorce is essentially the same as that for a civilian divorce. However, with the associated complexities, the divorce timelines may differ and legal complications should be anticipated due to military benefits, especially with active service military personnel.
Like civilian divorces, military divorces can still be contested or uncontested and most of the other elements of the process remain the same.
How to handle a military divorce in New Mexico
Because of the differences between military divorces and standard divorces—and the federal laws that protect military personnel—the following steps are recommended for couples considering a military divorce in New Mexico:
- Determine the proper jurisdiction for the divorce.
- Gather the necessary financial and military documents that prove your employment and financial status.
- If discussions with your spouse do not go smoothly, contact a qualified military divorce attorney.
- Consider mediation or collaborative divorce options to resolve outstanding issues.
- Even if you negotiate a settlement together with your spouse, have a qualified lawyer check it before submitting it to the court.
- Consider divorce litigation only as a last resort if other options are impossible or unsuccessful.
For advice on your legal rights, responsibilities, and options during a divorce, book a consultation with a divorce lawyer from Legal Solutions of New Mexico or call us at 505-445-4444.