In the Military but divorcing in civilian court?
If you and/or your spouse is in the military, and you are exploring the idea of a divorce, you probably have discovered it is not the same divorce as for a civilian. You also probably know that Federal law overrides any state law when any legal conflict arises.
Divorce never really seems to be simple, but for those military couples who have relatively short marriages, no property, children or military pension to settle, it can be somewhat simple. You’ll find specific guidance in the Service Members Civil Relief Act (SCRA). The more typical military divorce does involve children and assets and pensions, and more complication.
It’s important to understand that the military considers divorce and separation to be a private civil matter, best resolved by the courts. Sometimes military spouses expect too much out of military authorities, as if a Commander can have a word with a serviceman and have it be all better. Generally, the military wants to stay out of your divorce, unless it involves violence or abuse. Procedural involvement, like pay, benefits, property and so forth are often the extent of the military’s involvement. Frankly, this needs to be taken to court as all other divorces are.
The military makes available free legal advice, provided by the legal office (JAG). Anyone that has ever tried to use a JAG for divorce has found their usefulness to your legal needs in divorce is rather limited. They cannot prepare divorce or separation documents, they cannot represent you in court, and they cannot file legal divorce or separation paperwork for you. In most cases, the JAG will not be an expert in the divorce laws in the state you are stationed in, relegating him/her to general advice. You need to speak with a local attorney who knows state divorce laws. Your mission should be to seek out and hire an attorney well versed in the provisions of the Service members Civil Relief Act (SSCRA) and the Uniform Services Former Spouse Protection Act (USFSPA), as well as specific provisions required for garnishment of military pay.
If the marriage can’t be saved, someone must file for divorce in the local court of jurisdiction. Neither of you should vacate the home unless there is likely to be violence. If your home is not on-base housing, you’ll be able to coexist until the court can determine who should find other accommodations.
Do not do anything with your spouse’s I. D. card if you are the military member. It is not yours to take, and you can be subject to penalties by doing so (larceny would be one penalty).
In military divorces where marriages have lasted ten years or more, Federal law requires that a portion of a career service person’s pension be paid directly from the military to the ex-spouse.
Where the service person has been in the military less than 10 years the pension money is paid to the soldier and he in turn is required to send a portion of his pension to his ex-spouse.
If you are in housing on base you will need to get specific details on what you may or may not do should your spouse be the military member and decide to move into the dormitory (barracks). However, military family housing, by law, can only be occupied by military members who reside with their family members. The services all have regulations which require the family housing unit to be vacated (usually within 30 days) if the military members stops residing there, or if there are no family members residing there. So, in most cases, in the event of a separation, the party remaining in the base housing unit must vacate (unless the remaining party is the military member and other dependents, such as children, remain). Check with the Commander or JAG to get your specific options.
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Child custody – Much debate has occurred over the issue of custody when a person has been deployed during active duty. As recently as June 2010, fully 24 states had not enacted legislation protecting the deployed parent from suffering a permanent change in custody and/or visitation. Three years later, we’re pleased to report 46 states have enacted legislation to protect the deployed, and one (Massachusetts) has pending legislation. The three states that do not protect a deployed person’s custody and visitation rights at the time of this writing (2013) are Alabama, Minnesota and New Mexico.
Deployment – Custody and visitation can get tricky when a person is deployed. Terms of a temporary or permanent custody order necessarily change because one of the parents can no longer exercise the parenting time he or she is entitled to.
When a military parent is deployed and has physical custody of a child (the primary custodian), they sometimes leave the child with a relative or step-parent. The child’s other parent will often file for custody, and depending on the state they live in. may be awarded physical custody, and remove the child from the care of the relative or step-parent. When the deployed parent returns, getting physical custody back will again depend on the laws in that state.
The ServiceMembers Civil Relief Act (SCRA) is a federal law that allows military personnel to stay (put a temporary suspension on) civil proceedings during military deployment. Difficulties arise because not all state courts recognize this federal law and instead believe that the best interests of the child outweigh Federal legal protections of military parents.
When a military parent is deployed and is not the primary custodian and is entitled to visitation with a child, courts in most states allow the deploying parent to designate a relative or step-parent as the person that will fulfill the deployed parent’s visitation time with the child while deployed. Couples have been known to agree privately (without court involvement) to such an arrangement in preparation to the deployment, and once the deployed parent has departed, the other parent files for a change in custody and can (again, depending on that state’s laws) get a sole custody award, denying the visitation time with the designated relative or step-parent. When the deployed parent completes their tour, they return to a custody order that eliminated them from their legal right to see his or her child.
The obvious lesson here is that hiring a lawyer to protect your interests is imperative, no matter how much you trust your former spouse. Read Military Parents and Child Custody: State and Federal Issues
And finally, thanks for your service.
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