Military Divorces and Spousal Support

Posted: 18 October, 2021

Spousal support (also known as alimony) is not much different for military divorces than civilian divorces.  A divorce, and specifically alimony, is controlled by state laws.  Military couples cannot be divorced by military courts.  Military member must obtain a divorce through the state court they reside in.

In this article we explain the basics of spousal support and then discuss a couple federal laws that may apply to a military divorce.

Spousal support is separate and apart from assets and debts.   Nevada is a community property state and any assets or debts acquired during the marriage are divided evenly during a divorce.  Compared to alimony which is an attempt to equalize any income difference the spouses may have after the divorce.

Types of Alimony

There are several types of alimony a court may grant; temporary, permanent, and rehabilitative.

Temporary Support

Temporary alimony is to help cover legitimate short-term needs.   Temporary support is often called alimony but is actually not alimony.   It’s a court ordering one spouse to share community property income with the other spouse during the divorce proceeding.

Permanent Alimony

Permanent alimony is meant to assist a spouse of a long-term marriage where there is a discrepancy in income or earning potential.   Permanent alimony doesn’t mean non-modifiable.  Permanent means the amount will be paid for a certain period of time, or until a spouse files for a modification.

Rehabilitative Alimony

States may allow courts to award rehabilitative alimony to help one spouse obtain training or education to re-enter the workforce.  The court uses rehabilitative alimony to help a spouse gains the skills necessary to support themselves.  This type of alimony might be appropriate for a military spouse who has not been able to keep consistent employment because of frequent relocations.

Calculating Spousal Support

Spousal support is not like child support, in that there is not a concrete formula for how much alimony should be granted.   Spousal support is solely based on the judge’s discretion of what they consider to be “fair and equitable” in the context of each case.  There are no hard and fast rules the judge must use to determine how much one spouse should pay in alimony.   The judge has full discretion to determine whether or not spousal support is appropriate.  Then the judge has full discretion to determine the amount of monthly alimony and for how many months it should be paid.

Each judge reviews the facts, and on a case-by-case basis decides on alimony.  To determine alimony the judge looks at “factors”.   Factors such as the length of the marriage and the income difference between the two spouses.    The courts have traditional factors to review, but a judge can use any factor it finds relevant.

The main factor will be the difference in income.  If both spouses make similar income then alimony would not be appropriate. On the other hand, if one spouse earns significantly more than the other, then spousal support might be necessary, based on the length of the marriage.    However, there are a number of common factors judges take a look at.

Main Spousal Support Factors

  • Income differences
  • Duration of the marriage
  • Standard of living during the marriage
  • Financial condition of each spouse
  • Earning capacity of both spouses
  • Age and health of each spouse
  • Specialized education or training attained during the marriage
  • Amount of assets each spouse is receiving from the divorce

Although there is no absolute formula for calculating alimony, we have created calculator.  The calculator takes into consideration the main factors courts look at. To get a ballpark calculation visit our Spousal Support Calculator.

Special Laws for Military Members

As noted earlier, each state has jurisdiction over divorce cases. Each state’s laws determine how the divorce proceeding will be held, and any orders of alimony.  However, there are a few federal laws that apply to military members and therefore could affect alimony.

Support of Dependents

All branches have provisions for the maintenance of a service member’s family until the final divorce orders.  The military will not allow a military member to withhold economic support from a spouse or dependent.   These are usually interim guidelines and roughly equal to your Basic Allowance for Housing (BAH).   The Nevada courts may take this into account when ordering temporary support.  Once the divorce is finalized, the court-ordered alimony will replace this interim amount

Military Benefits and Spousal Support

Military benefits are not included in alimony and would not affect alimony.   Whether a spouse receives alimony or not does not affect the military benefits a spouse would be entitled to.  And vice versa.

Whether a military spouse receives military benefits after the divorce is controlled by the Uniformed Services Former Spouses’ Protection Act (USFSPA).   Typical benefits a spouse is requesting is the pension, health benefits or based privileges.  All three of these are based on whether the marriage was for 20 years, and whether the military members was in the military for 20 years.  This is often called the 20-20 rule.  The 20 years of marriage and military service must overlap each other.

Failing to Pay Alimony

If the service member forgets to pay spousal support for more than two months, the ex-spouse may request a wage garnishment and send that order to Defense Finance and Accounting Services (DFAS). Alternatively, may submit forms requesting an Involuntary Allotment. The difference between the two is that wage garnishment does not affect a service member’s benefits like BAH. An involuntary allotment will collect from all of the service member’s income.