Military families face unique legal challenges when divorce becomes inevitable. Frequent relocations, deployments, and federal statutes all shape how military divorces unfold. Even in an uncontested case—where both spouses agree on all terms—special care is needed to navigate the law, protect rights, and avoid delay.
An uncontested divorce can be a smart and amicable path for military spouses in Asheville, especially with the right planning and knowledge of how North Carolina courts handle military-specific issues. Understanding the Servicemembers Civil Relief Act (SCRA), jurisdictional requirements, and rules around military retirement division is essential to ensuring the process goes smoothly.
This blog provides a comprehensive guide to uncontested divorce for military families in Asheville. It walks through every step of the process while highlighting the unique rules that apply to servicemembers and their spouses. Whether you’re active duty, a military spouse, or recently separated from the service, this guide will help you prepare for divorce in Buncombe County and other Western North Carolina jurisdictions.
What Is an Uncontested Divorce in Asheville?
An uncontested divorce means both spouses agree to:
- End the marriage
- The reason for the divorce (in North Carolina, one year of separation)
- All relevant issues: property division, alimony, child custody, child support
Unlike contested divorces, which involve courtroom battles and judicial decisions, uncontested divorces are resolved by mutual agreement—often memorialized in a separation agreement. The court still oversees the legal process, but it doesn’t have to intervene on the parties’ terms.
For military families, uncontested divorce offers major benefits: privacy, efficiency, reduced legal costs, and the ability to resolve military-specific concerns out of court.
An Asheville divorce lawyer can help you prepare a compliant, enforceable agreement that addresses both state and federal military protections.
Residency and Jurisdiction Rules for Military Divorce in North Carolina
Military families are often stationed far from their home states. This creates jurisdictional challenges when filing for divorce. Fortunately, North Carolina law accommodates military families under certain conditions.
To file for divorce in Asheville:
- One spouse must have resided in North Carolina for at least six months prior to filing; OR
- One spouse must be stationed in North Carolina and intend to remain
This means that if a servicemember is stationed at a North Carolina base, including Camp Lejeune, Fort Liberty, or the Asheville Recruiting Company, they may satisfy the residency requirement.
Additionally:
- Divorce actions must be filed in the county where one party resides (Buncombe County for Asheville)
- Both spouses must have lived separately and apart for at least 12 consecutive months
It is critical to confirm proper jurisdiction and venue before filing. If the court lacks jurisdiction, the divorce can be delayed or dismissed.
The Servicemembers Civil Relief Act (SCRA)
The Servicemembers Civil Relief Act (SCRA) is a federal law that protects active-duty military members from legal proceedings that could interfere with their ability to serve.
Key SCRA protections include:
- Postponement (stay) of civil proceedings if military duties prevent participation
- Prohibition on default judgments without verification of active-duty status
- Requirement that a plaintiff file a Military Affidavit in divorce cases
In an uncontested divorce, the SCRA most often arises when the military spouse is deployed or fails to respond to the complaint. If the plaintiff seeks a default judgment, the court must first verify that the non-responding spouse is not on active duty—or that they’ve waived SCRA protections.
Failure to comply with the SCRA can result in dismissal of the divorce action or reversal of the judgment.
To avoid delay, an Asheville divorce lawyer will ensure:
- A proper Military Affidavit is filed
- SCRA protections are waived in writing, if applicable
- The servicemember is notified and consents to proceed
How to Start an Uncontested Divorce for Military Families in Asheville
The process is similar to any other uncontested divorce, but with extra steps to accommodate military-specific rules.
Step 1: Confirm Eligibility and Jurisdiction
Ensure that at least one spouse has lived in North Carolina for six months, or is stationed here. Confirm that the couple has lived separately for at least one year.
Step 2: Draft a Separation Agreement
If the parties agree on all issues (property, debt, custody, support), they can sign a separation agreement to govern the terms of their divorce.
The agreement should address:
- Division of marital property
- Military pensions and retirement benefits
- Spousal support, if applicable
- Child custody and child support
- Tricare or VA benefits (if relevant)
Step 3: File the Divorce Complaint
The plaintiff (filing party) must file a Complaint for Absolute Divorce with the Buncombe County Clerk of Court. This starts the legal process.
Required documentation includes:
- Complaint
- Civil Summons
- Domestic Civil Action Cover Sheet
- Military Affidavit
- Separation agreement (optional but recommended)
Step 4: Serve the Defendant
The non-filing spouse must be served with the complaint, either by:
- Certified mail (return receipt requested)
- Sheriff’s service
- Acceptance of service (if spouse signs a waiver)
- Service by publication (if spouse is missing and cannot be located)
If the spouse is on active duty, SCRA waivers may be required.
Step 5: Wait 30 Days
Once served, the defendant has 30 days to respond. In uncontested divorces, the spouse may:
- Sign a waiver of answer and consent to the divorce
- Allow the 30-day period to expire without filing anything
After 30 days, the plaintiff may file a motion for summary judgment to finalize the divorce.
Step 6: Finalize the Divorce
If the court finds that all requirements are met, a judge will sign the Judgment of Absolute Divorce. If a separation agreement is incorporated, it becomes enforceable as a court order.
Dividing Military Retirement and Pension in an Uncontested Divorce
One of the most complex issues in any military divorce is how to divide retirement benefits. The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows state courts to treat military retirement pay as divisible marital property.
Here’s what military families in Asheville need to know:
1. Marital Portion of Retirement
Only the portion of the military retirement earned during the marriage is subject to division. The length of marriage and overlap with service years determines what is divisible.
2. Direct Pay Eligibility: The 10/10 Rule
A former spouse is eligible to receive their share of military retirement pay directly from DFAS if:
- The marriage lasted at least 10 years
- The military member served at least 10 years during the marriage
If this rule is not met, the spouse can still receive their share, but the servicemember must issue payments directly.
3. Drafting a Division Clause
The separation agreement must include precise language on how the military pension will be divided. This includes:
- Percentages or fixed dollar amounts
- Survivor Benefit Plan provisions (if elected)
- COLA (cost-of-living adjustment) inclusion or exclusion
DFAS requires strict wording. If the clause is vague or incorrect, the payment may be denied or delayed.
An Asheville divorce lawyer familiar with military retirement division will ensure the agreement complies with USFSPA and DFAS standards.
Survivor Benefit Plan (SBP) Considerations
The SBP is an optional insurance policy that allows a former spouse to continue receiving military retirement payments if the servicemember dies. It’s essential for divorcing spouses who rely on retirement income.
Key points:
- Must be elected at time of divorce
- Former spouse must be named as the SBP beneficiary
- Election must be submitted to DFAS within one year of the divorce
Failure to elect SBP properly means benefits terminate upon the servicemember’s death. The issue must be addressed explicitly in the separation agreement.
Tricare and Other Military Benefits
Former military spouses may remain eligible for Tricare, commissary, and exchange privileges under the 20/20/20 rule:
- 20 years of marriage
- 20 years of military service
- 20 years of overlap between the two
If the spouse meets only the 20/20/15 rule (15 years of overlap), Tricare coverage may continue for one year post-divorce.
These benefits are not determined by the court but should be acknowledged in the agreement. An Asheville divorce lawyer can help confirm eligibility and address related healthcare obligations.
Child Custody and Parenting Plans for Military Parents
Military careers often involve deployments, relocations, and schedule uncertainty. That makes child custody agreements especially important for servicemembers.
In an uncontested divorce, parents can work together to create a customized parenting plan that:
- Reflects the realities of military life
- Includes provisions for long-distance communication during deployments
- Assigns temporary custody during active duty assignments
- Establishes relocation terms if one parent is reassigned
Courts favor stability and the best interests of the child. A well-drafted plan will increase the likelihood of approval and avoid unnecessary litigation.
Child Support and BAH (Basic Allowance for Housing)
Child support in North Carolina is based on the parents’ gross incomes and custody arrangement. For military servicemembers, gross income includes:
- Base pay
- BAH (Basic Allowance for Housing)
- BAS (Basic Allowance for Subsistence)
- Special pays (hazard pay, flight pay, etc.)
These benefits must be included in the child support calculation, even though they’re non-taxable.
In uncontested cases, the parties can agree on a support amount. However, if the amount deviates from the North Carolina child support guidelines, the court may require justification.
The agreement should specify:
- Monthly support amount
- Method and frequency of payment
- Childcare or extracurricular reimbursements
- Duration of payments (typically until age 18 or graduation)
Deployment and Divorce Proceedings
If a servicemember is deployed, they may be unable to participate in the divorce process fully. This is where SCRA protections come into play. However, with proper planning, an uncontested divorce can still proceed.
Tips for handling deployment:
- Get written waivers for SCRA protections, if appropriate
- Use power of attorney documents for representation
- Schedule signing of the separation agreement before deployment
- Communicate via secure electronic channels
Judges understand the constraints of military service and often allow some flexibility—so long as due process is observed.
Taxes and Military Divorce
Uncontested divorces must also address tax consequences:
- Which parent claims the child for tax purposes?
- How are dependency exemptions allocated?
- Will spousal support be taxed or deductible?
Military families must also understand that:
- BAH and BAS are not taxed but must be disclosed for support purposes
- Division of retirement pay is not a taxable event if done by court order
- SBP premiums reduce the servicemember’s retirement pay and may impact net support
An Asheville divorce lawyer can coordinate with financial advisors to ensure tax issues are addressed clearly.
Why an Asheville Divorce Lawyer Is Essential for Military Families
Military divorces are governed by a web of state and federal rules. Even in an uncontested case, errors in jurisdiction, retirement division, or benefit eligibility can result in delays, denials, or costly post-divorce disputes.
An experienced Asheville divorce lawyer can:
- Ensure jurisdiction is proper under North Carolina law
- Draft a separation agreement that complies with DFAS and SCRA rules
- Address retirement division, SBP, and VA issues
- File and finalize your uncontested divorce efficiently
With military-specific knowledge, your lawyer can prevent problems and guide you toward a smooth and enforceable outcome.
FAQ
Can I file for divorce in Asheville if I’m stationed here temporarily?
Yes, if you intend to remain in North Carolina or if your spouse resides here, you likely meet the jurisdictional requirements.
Does SCRA prevent my spouse from divorcing me while I’m deployed?
It can delay proceedings if you invoke your rights, but you can waive them in uncontested cases to allow the process to continue.
How is military retirement divided in an uncontested divorce?
Through a separation agreement or court order that complies with federal rules. Only the marital portion is subject to division.
What is the 10/10 rule?
It determines whether DFAS can send payments directly to a former spouse. It does not affect whether the spouse is entitled to a share of retirement.
Can we divide Tricare benefits in our agreement?
No, Tricare eligibility is governed by federal rules. You can acknowledge the expected coverage but not alter entitlement.
Do I need a court order to get my share of retirement pay?
Yes. DFAS requires a properly worded order or incorporated agreement to divide retirement pay.
Can we include deployment provisions in our custody plan?
Yes. Parenting plans should address military duties, including communication during deployment and reassignment clauses.
Will my BAH be included in child support?
Yes. It’s considered income for purposes of calculating child support.
How long does an uncontested military divorce take in Asheville?
Typically 60–90 days, assuming proper filing, service, and documentation.
Do we need separate lawyers for an uncontested military divorce?
Not necessarily, but only one party can be represented. The other must waive counsel or obtain independent legal advice. An Asheville divorce lawyer can guide you through ethically and efficiently.
The McKinney Law Group: Uncontested Divorce Made Easy for Asheville Couples
If you and your spouse agree on the terms, there’s no reason to drag out the process. We help Asheville clients complete uncontested divorces efficiently—with clear legal guidance from start to finish.
Call 828-929-0642 or email [email protected] to get started today.