Military Divorce in New York: SCRA, USFSPA, and What Every Service Member or Spouse Needs to Know

The SCRA gives an active-duty service member the right to request a stay — a pause — of civil court proceedings, including divorce, when military service materially affects their ability to participate. An initial stay of at least 90 days is mandatory when properly requested; further stays are discretionary. The service member must submit a letter from their commanding officer confirming that military duty prevents their appearance and that leave is not available.

The SCRA also protects against default judgments. Before a court may enter a default in a divorce action against a service member, the plaintiff must file an affidavit stating whether the defendant is on active duty. Courts must appoint an attorney to represent the absent service member before proceeding.

Practically speaking, the SCRA does not prevent a divorce from ever being finalized — it prevents it from being finalized without the service member having a genuine opportunity to participate. For spouses of deployed service members, this can mean a significantly longer timeline.

Military families often live far from their legal domicile. New York courts can exercise jurisdiction over a military divorce if either spouse is domiciled in New York, has been a resident for the requisite period (at least one year under DRL §230), or if the service member claims New York as their home state for legal purposes. A service member permanently stationed at a New York installation but originally from another state may have the choice of filing in multiple states — a choice with significant implications for property division, spousal maintenance, and child custody outcomes.

The Uniformed Services Former Spouses’ Protection Act authorizes state courts to treat military retired pay as marital property subject to division in equitable distribution. Without the USFSPA, federal law would preempt state courts from touching military pensions entirely.

Key points every divorcing military family needs to understand:

• The marital portion only. Like any pension, only the portion of retired pay earned during the marriage is marital property. Courts use a coverture fraction — similar to the Majauskas formula used for civilian pensions — to calculate the marital share.
• The 10/10 rule. DFAS (Defense Finance and Accounting Service) will pay the former spouse directly only if the marriage lasted at least 10 years overlapping with 10 years of creditable military service. If the marriage does not meet the 10/10 threshold, the service member must pay the former spouse’s share directly — which creates enforcement risk.
• Disability pay is not divided. If a service member waives retired pay to receive VA disability compensation (which is not taxable), that waived amount cannot be divided as marital property under federal law. This is a significant issue in cases involving partially disabled veterans.
• There is no QDRO for military pensions. The order dividing a military pension is called a Military Retired Pay Division Order (sometimes called a MPDO or RBDSO depending on the branch), not a QDRO. The requirements differ from those governing civilian plans, and errors can be costly.

Basic Allowance for Housing (BAH) is a non-taxable benefit paid to service members who do not live in government-provided housing. New York courts regularly include BAH in gross income for purposes of calculating child support and spousal maintenance under the CSSA. This can meaningfully increase the support obligation compared to what base pay alone would generate — and it is an issue worth raising explicitly in negotiations and court.

Military spouses who lose TRICARE coverage upon divorce have options depending on the length of the marriage and military service:

• The 20/20/20 rule: If the marriage lasted at least 26 combined years, the service member served at least 26 combined years, and those periods overlap by at least 26 combined years, the former spouse retains full TRICARE coverage indefinitely.
• The 20/20/15 rule: If the overlap is at least 15 years (but less than 20), the former spouse has one year of transitional TRICARE coverage.
• All other cases: The former spouse loses TRICARE at divorce and must find other coverage — through the ACA marketplace, COBRA, or employer insurance.

Healthcare coverage can be a significant financial factor in military divorce negotiations, particularly for spouses approaching retirement age who would face significant out-of-pocket costs under alternatives to TRICARE.

Custody arrangements for military families must account for the reality of deployment. New York courts applying the best interests of the child standard will look carefully at parenting plans that address: what happens to custody during deployment; how parenting time is made up after return; whether virtual visitation (video calls) is incorporated; and which parent serves as caretaker during deployment. Some courts are wary of awarding primary custody to a parent whose military service could require extended absence, while others recognize that deployment is temporary and should not penalize a parent long-term.

The key is a detailed, forward-looking parenting plan that addresses these scenarios explicitly rather than leaving them to later negotiation or litigation.

Military divorce requires competence in two bodies of law simultaneously — New York domestic relations law and the federal statutes that govern service members. Attorneys who handle only civilian matters frequently overlook USFSPA requirements, mishandle the division order, or fail to advise clients on BAH income or TRICARE rights. Weinrieb Law represents both service members and military spouses, and ensures that neither federal protections nor state-law rights are left on the table.