Military Divorce in North Carolina
Fort Bragg, Camp Lejeune, Cherry Point, Seymour Johnson, and the Coast Guard put more service members in North Carolina courtrooms than almost anywhere in the country. A military divorce runs under state law, but three federal statutes and the military’s own regulations shape how it is filed, when it can proceed, how retirement is divided, and what benefits a former spouse keeps. This page covers all of it.
What Makes a Military Divorce Different
The grounds, the waiting period, and the basic process are the same. North Carolina still requires a one-year separation before an absolute divorce, still divides marital property under equitable distribution, and still decides custody on the child’s best interests. What changes is the set of rules layered on top: federal law that limits when a case can move forward and what a court can do with military pay, the Defense Finance and Accounting Service’s requirements for any order it will honor, branch regulations that impose obligations independent of the court, and benefit rules with hard deadlines. A divorce decree that ignores them will be signed by the judge and then rejected by DFAS, which is how former spouses end up with a court order and no payments.
Custody for military parents has its own set of protections under North Carolina’s Deployed Parents Act. That topic is covered on our military custody page; this page focuses on the divorce itself, jurisdiction, support, retirement, and benefits.
Where a Military Divorce Can Be Filed
Military families often have three different states in play: the state where the member is stationed, the member’s state of legal residence for tax and voting purposes, and the state where the spouse lives. Each question in the divorce can have a different answer.
North Carolina requires that one spouse have resided in the state for six months before filing for divorce. A service member stationed here meets that requirement, and so does a spouse who has lived here for six months, whether or not the member considers another state home. So the divorce itself can almost always be filed in North Carolina if either spouse has been here six months.
Dividing military retired pay is different. Under the USFSPA, a state court can divide retirement only if the member is a legal resident of the state for reasons other than military assignment, is domiciled in the state, or consents to the court’s jurisdiction. A member stationed at Camp Lejeune whose home of record is Texas can be divorced in North Carolina, but if the member does not consent, the North Carolina court cannot divide the pension, and the spouse may have to pursue that claim in Texas. Consent is often given without anyone realizing it, by filing a counterclaim or asking the court for affirmative relief, so both sides need advice before the first filing. The custody question is governed by the UCCJEA and turns on where the child has lived for the past six months, not on either parent’s residence.
The Servicemembers Civil Relief Act
The SCRA, updated in 2003 to cover reservists and National Guard members on active duty, protects service members from being disadvantaged in civil cases because of their service. In a divorce it does two things. First, a member whose duties materially affect their ability to appear can request a stay of the case. The initial stay of at least 90 days is mandatory if the request includes a statement explaining how duty prevents appearance and when the member could appear, plus a letter from the commanding officer confirming that duty prevents appearance and leave is not authorized. Further stays are at the court’s discretion. Second, no default judgment can be entered against an active-duty member without the court first appointing an attorney to protect the member’s interests, and a default entered during service can be reopened.
The SCRA delays; it does not decide. A member who stays the case to avoid it usually faces the same case, and a less patient judge, when the stay expires. Used well, the SCRA buys time to participate through counsel and by remote testimony rather than to freeze everything.
The command runs a parallel process
A civilian spouse can go to the member’s command, and many do. Under the Uniform Code of Military Justice, extramarital sexual conduct remains an offense under Article 134, and a complaint of adultery can trigger an investigation with consequences for rank, clearance, and career, entirely apart from what happens in the divorce. Each branch also requires members to support their family even without a court order; the Army’s AR 608-99, for example, sets interim support amounts tied to BAH, and a spouse can seek enforcement through the chain of command while a state case is pending. Domestic violence allegations bring in the Family Advocacy Program and can result in a military protective order that is separate from, and can be broader than, a civilian domestic violence protective order. Clients on both sides of a military divorce need to understand that the command’s process runs alongside the court’s, with different rules and different consequences.
Military Pay, Child Support, and Alimony
North Carolina counts a service member’s full compensation as income for child support and alimony, not just base pay. The Basic Allowance for Housing and Basic Allowance for Subsistence are income under the child support guidelines even though they are not taxed, because they are available to meet the family’s needs. So are special pays, bonuses, and, during a deployment, hostile fire and hardship duty pay. A member’s Leave and Earnings Statement is the starting document in every military support case.
Deployment changes the numbers in both directions. Combat zone pay is excluded from federal income tax, which raises take-home pay, while family separation allowance begins. Either parent can seek a modification if the change is substantial, but the existing order stays in effect until a court changes it. See our child support modification section.
Support and alimony can be collected from military pay by garnishment through DFAS under federal law, independent of the USFSPA property division rules. When a former spouse is receiving both a property share of retired pay and support by garnishment, the combined federal withholding is capped at 65 percent of disposable retired pay.
Dividing Military Retirement: The USFSPA
Military retirement is usually the most valuable asset in a military marriage, and it is the one governed by the most federal rules. In 1981 the U.S. Supreme Court held in McCarty v. McCarty that federal law prevented state courts from dividing military retired pay in divorce. Congress responded the next year with the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408, which allows state courts to treat “disposable retired pay” as marital property under state law and directs DFAS to pay a former spouse’s share directly in qualifying cases.
The Act does not give a spouse anything by itself. It authorizes North Carolina to apply its own equitable distribution law, under which the portion of retirement earned during the marriage is marital property. The marital share is usually expressed as a fraction: months of marriage overlapping creditable service divided by total months of creditable service, applied to the retired pay. What follows are the federal rules that limit how that share is calculated and paid.
The 10/10 rule
The most misunderstood rule in military divorce. It does not require ten years of marriage before a spouse can share in retirement. It determines only whether DFAS will pay the former spouse directly. If the marriage overlapped at least ten years of creditable service, DFAS sends the former spouse’s share each month. If not, the court can still award a share; the retiree pays it personally. Direct payment from DFAS for property division is capped at 50 percent of disposable retired pay.
The frozen benefit rule
Section 641 of the 2017 National Defense Authorization Act changed how the marital share is valued for any divorce finalized after December 23, 2016, where the member had not yet started drawing retired pay. The former spouse’s share is now calculated using the member’s rank, years of service, and retired pay base on the date of divorce, adjusted only for cost-of-living increases. Promotions and additional service after the divorce no longer increase the former spouse’s share. A member who divorces as an E-6 and retires as an E-9 pays a share based on E-6 pay. For a member already retired at divorce, the rule does not apply.
Reserve and National Guard retirement
Reserve component retirement is earned in points rather than years and is not paid until age 60 (earlier for some qualifying active service). An order dividing a reservist’s retirement must state the marital share in terms DFAS accepts, usually points earned during the marriage over total points, and must include the specific data DFAS requires. Orders that do not are rejected and have to be redone, sometimes years later when the member finally retires.
VA disability, CRDP, CRSC, and Howell v. Howell
A retiree with a service-connected disability can receive VA disability compensation, which is tax-free, but in most cases must waive an equal amount of retired pay to get it. Waived pay is not “disposable retired pay” under the USFSPA and cannot be divided. Every dollar a retiree shifts from retirement to disability is a dollar removed from the pool the former spouse shares in.
The Supreme Court made this rule airtight in Howell v. Howell (2017). A former spouse had been awarded half of her husband’s retirement at divorce; years later he elected disability and her payments dropped. The Arizona courts ordered him to make up the difference. The Supreme Court reversed, holding that federal law preempts any state court order that treats waived retired pay as divisible or that requires the veteran to reimburse the former spouse for the reduction. A former spouse can receive a set percentage of retirement for a decade and then watch it shrink when the retiree’s disability rating increases, with no remedy in the property division.
What drafting can still do is the subject of ongoing litigation nationally. Courts are divided on whether a separation agreement can obligate the member to pay a fixed amount regardless of source, or whether alimony can be adjusted to compensate. The safe course for a former spouse is to negotiate protection at the time of divorce, through a fixed-dollar obligation in a separation agreement, an alimony provision, or a larger share of other assets, rather than to rely on a percentage of retirement that federal law allows the retiree to reduce. Concurrent Retirement and Disability Pay (CRDP) restores the waived retired pay for retirees rated 50 percent or higher and is divisible; Combat-Related Special Compensation (CRSC) replaces it for combat-related disabilities and is not. A member eligible for both chooses each year, and that choice affects the former spouse.
The Survivor Benefit Plan
Military retirement stops when the retiree dies. A former spouse who receives a share of retired pay for twenty years loses it the day the retiree dies unless the Survivor Benefit Plan was set up to cover them. SBP is an annuity, funded by a premium deducted from retired pay, that continues a percentage of retirement to a designated beneficiary after the retiree’s death. Former-spouse coverage is available, and in a long marriage it can matter as much as the division of retirement itself.
The trap is the deadline. Former-spouse SBP coverage is not automatic and does not follow from a divorce decree by itself. The member must elect former-spouse coverage within one year of the divorce, or, if the member does not, the former spouse must file a “deemed election” with DFAS within one year of the date of the court order requiring coverage. Miss both windows and the coverage is gone permanently. Any order dividing military retirement should address SBP expressly, allocate the premium, and set a calendar reminder for the deemed election on the day it is signed.
Thrift Savings Plan and other assets
The Thrift Savings Plan is a defined contribution account like a civilian 401(k) and is divided by a retirement benefits court order that meets TSP’s requirements, separate from any order dividing retired pay. Accrued leave, separation pay, enlistment and reenlistment bonuses earned during the marriage, and a member’s Post-9/11 GI Bill benefits can all raise classification and valuation questions in equitable distribution. GI Bill benefits transferred to a spouse before divorce can be revoked by the member afterward, so a spouse counting on them should address that in the settlement.
TRICARE, Base Privileges, and the 20/20/20 Rule
Whether a former spouse keeps military health care and installation privileges depends entirely on length of marriage, length of service, and how much they overlapped. No court order can change these thresholds.
| Benefit | Requirement | What the former spouse receives |
|---|---|---|
| Direct payment of retired pay from DFAS | 10 years of marriage overlapping 10 years of creditable service | Court-ordered share paid directly, up to 50% of disposable retired pay |
| Lifetime TRICARE, commissary, exchange, and ID card | 20 years of marriage, 20 years of service, 20 years of overlap (20/20/20) | Full benefits for life, as long as the former spouse does not remarry and has no employer health plan |
| Transitional TRICARE | 20 years of marriage, 20 years of service, 15 to 19 years of overlap (20/20/15) | One year of TRICARE coverage after the divorce |
| Survivor Benefit Plan | Court order or member election, plus deemed election filed with DFAS within one year | Annuity after the retiree’s death |
A former spouse who does not meet the 20/20/20 or 20/20/15 thresholds loses TRICARE on the date the divorce is final. The Continued Health Care Benefit Program offers up to 36 months of coverage at the former spouse’s expense, and the enrollment window is 60 days from loss of eligibility. Children remain covered by TRICARE regardless of the divorce, through the sponsoring parent. Because a divorce that is finalized a few months too early can cost a spouse lifetime health coverage, the timing of the absolute divorce is a real strategic question in a marriage approaching twenty years.
Common Questions
Can I file for divorce in North Carolina if my home of record is another state?
Yes, if you or your spouse has lived in North Carolina for six months. Being stationed here counts. Dividing your military retirement in North Carolina is a separate question: the court can do that only if you are a legal resident here apart from your assignment, are domiciled here, or consent. Filing a counterclaim can amount to consent, so get advice before you respond to a complaint.
Can a service member pause a divorce while deployed?
A member can request a stay under the SCRA. The initial 90-day stay is mandatory if the request includes the member’s statement and a commanding officer’s letter showing that duty prevents appearance and leave is not authorized. Extensions are discretionary. It is a delay, not a bar, and the case resumes when the stay ends.
Does my spouse have to be married to me for ten years to get part of my retirement?
No. The court can award a share of the marital portion of your retirement after any length of marriage. Ten years of overlap between the marriage and creditable service determines only whether DFAS pays your former spouse directly or you pay them yourself. A short marriage produces a small marital share either way.
Will my ex share in my promotions after the divorce?
Not if the divorce was finalized after December 23, 2016, and you were not yet drawing retired pay. Under the frozen benefit rule, the former spouse’s share is calculated on your rank and years of service at divorce, with cost-of-living adjustments only.
Can VA disability pay be divided?
No. Disability compensation is not disposable retired pay and cannot be divided, and under Howell v. Howell a court cannot order the retiree to make up the reduction when a disability election lowers the former spouse’s share. A former spouse who wants protection against that risk has to negotiate it at the time of divorce through other terms.
What happens to my share of retirement if my ex-spouse dies first?
It ends, unless former-spouse Survivor Benefit Plan coverage was elected. The member must elect it within one year of the divorce, or the former spouse must file a deemed election with DFAS within one year of the court order requiring coverage. Missing both deadlines forfeits the coverage.
Is BAH counted as income for child support and alimony?
Yes. North Carolina counts BAH, BAS, and other allowances and special pays as income even though they are not taxed, because they are available to support the family. The Leave and Earnings Statement is the document the court works from.
Will I keep TRICARE after the divorce?
Only if you meet the 20/20/20 rule: twenty years of marriage, twenty years of your spouse’s creditable service, and twenty years of overlap. With twenty years of marriage and service but fifteen to nineteen years of overlap, you get one year of transitional coverage. Otherwise TRICARE ends when the divorce is final, and you have 60 days to enroll in the Continued Health Care Benefit Program for up to 36 months of paid coverage.
Can my spouse report me to my command for adultery?
Yes. Extramarital sexual conduct is an offense under Article 134 of the UCMJ, and a complaint to the command can trigger an investigation regardless of how the divorce turns out. North Carolina also allows a spouse to sue a third party for alienation of affections and criminal conversation, which is a separate civil claim.
Do I have to support my spouse before there is a court order?
Under military regulations, yes. Each branch requires members to provide support to family members, and the Army’s AR 608-99 sets interim amounts based on BAH. A spouse can ask the command to enforce the regulation while the state case is pending. A court order or written agreement replaces the regulatory amount once it exists.
How is a reservist’s or Guard member’s retirement divided?
By points rather than years. The marital share is usually points earned during the marriage over total points, and the order must contain the specific information DFAS requires or it will be rejected. Reserve retired pay is not paid until age 60 in most cases, so a former spouse may wait years for payments to begin.
What happens to custody when I deploy?
North Carolina’s Deployed Parents Act prevents a court from using your deployment against you, lets you delegate your custodial time to a family member during the deployment, and requires expedited hearings and remote testimony. Our military custody page covers it in detail.
Should the divorce be timed around the 20-year mark?
Sometimes. If a marriage and the member’s service are both approaching twenty years with twenty years of overlap, finalizing the absolute divorce after that date can preserve lifetime TRICARE and base privileges for the former spouse. Because North Carolina requires a one-year separation before divorce anyway, the timing is often manageable. It is a legitimate negotiating point for both sides.
Related Reading
Serving Those Who Serve
Our offices in Charlotte, Gastonia, and Raleigh handle military divorces for service members and spouses from every installation in North Carolina. Let’s talk through the federal rules that apply to your case before anything is filed.
