Advanced Family Law Guide - Military Divorce

Like a private sector retirement plan, military retirement can also be characterized as community property, to the extent earned during marriage. The Uniformed Services Former Spouses' Protection Act (USFSPA) expressly declares that ``disposable retired pay'' received as nondisability military retirement and earned during marriage is community property subject to division on divorce.

Under the Soldiers' and Sailors' Civil Relief Act of 1940, a default judgment may not be entered in any proceeding in any court unless the petitioner has filed an affidavit stating that:

• The respondent is not currently in the United States military service;
• The respondent is currently in the military; or
• The petitioner is unable to ascertain whether the respondent is currently in the military.

If the respondent is in the military or the petitioner does not know the respondent's military status, the trial court may enter a judgment only after an attorney has been appointed to represent the respondent. A default judgment taken without following these requirements is not void, but is voidable on a showing of prejudice by the service member. A default judgment taken against a service member during a period of military service or within 30 days of the date military service ends may be reopened by the court that originally rendered judgment if it appears that (1) the service member was prejudiced by reason of military service in making a defense, and (2) the service member has a meritorious or legal defense to all or part of the action. The service member must apply to have the judgment reopened while still a service member or within 90 days of termination of service.