Military Divorce — Frequently Asked Questions
This information is for general educational purposes only and does not constitute legal advice. Every case is different. For advice specific to your situation, schedule a consultation with a licensed South Carolina family law attorney.
Below are answers to the most common questions our clients ask about military divorce and custody cases in South Carolina. Columbia is home to Fort Jackson, and our firm has substantial experience representing active duty service members, veterans, and military spouses.
For additional information, see our video on common issues in military divorce and custody cases and our dedicated military divorce practice area page.
Military pensions can be divided as part of equitable distribution. The non-military spouse is typically entitled to 50% of the "marital fraction" — the portion of retirement points or service time earned during the marriage.
Under the Uniformed Services Former Spouses' Protection Act (USFSPA), if the marriage overlapped with at least 10 years of creditable military service, the Defense Finance and Accounting Service (DFAS) will make direct payments of the former spouse's share of retired pay. If the overlap is less than 10 years, the service member is still obligated to pay — the former spouse simply cannot receive payments directly from DFAS and must collect from the service member.
No. VA disability compensation is exempt from division as property under federal law. However, if a service member waives a portion of their retirement pay to receive VA disability pay, the reduction in divisible retired pay can significantly impact the former spouse's share. This is a complex area that requires careful attention during settlement negotiations.
Yes. Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) are included in gross income for purposes of calculating child support under the South Carolina Child Support Guidelines, even though these allowances are not subject to federal income tax.
The SCRA allows active duty service members to request a stay (postponement) of civil proceedings, including divorce, if military duty materially affects their ability to appear. This protection is designed to prevent default judgments against deployed service members. However, the SCRA does not prevent a case from being filed — it simply allows the service member to request additional time.
A former spouse can retain full Tricare benefits if the marriage lasted at least 20 years, the service member had at least 20 years of creditable service, and there was at least a 20-year overlap between the marriage and the military service (the "20/20/20" rule). A reduced benefit is available under the "20/20/15" rule (15-year overlap) for one year following the divorce. Former spouses who do not meet these thresholds lose Tricare eligibility upon finalization of the divorce.
A Permanent Change of Station (PCS) order that requires a service member to relocate can trigger a custody modification. South Carolina courts evaluate relocation requests under the best interests of the child standard. If the service member has primary custody, the non-military parent may seek to modify custody. If the non-military parent has primary custody, the service member's visitation schedule may need to be restructured to account for the distance. It is critical to address these possibilities in any custody agreement or order involving a military parent.
If you have questions about the issues discussed on this page, call (803) 587-0472 or email Nick@NDMLaw.com to schedule a consultation with Attorney Nick Mermiges.