Thursday, July 1, 2010

A Military Divorce Guide (Part 1)

The following article was written by Theodore Sliwinski, Esq. and can be found on part 1 of 3

General Info

1. What are the residency and filing requirements for a service member to file for a divorce?

The state of New Jersey will allow a military member or a spouse to file for a divorce where he or she is stationed, even if neither the servicemember nor the spouse is a resident of New Jersey. New Jersey will often reduce or eliminate the residency requirement for military divorces.

A servicemember or a spouse has a choice of the following three states in which to file for a divorce;

  1. The state where the spouse resides.
  2. The state where the servicemember is stationed.
  3. The state where the servicemember claims legal residency. This is where the servicemember’s home state, or where he or she plans to live after discharge or retirement.

In my experience, military divorce cases and child support disputes can become extremely convoluted. In a typical military divorce, the parties are divorced in the county court where the military base is located. Almost invariably, both spouses move back to their home state, or the servicemember is transferred to another base out of state. Consequently, the state where the original divorce case was filed retains jurisdiction over any post-judgment issues. I have had a case wherein New Jersey retained jurisdiction over a military divorce for more than 15 years even though the civilian spouse moved to Michigan, and the servicemember was transferred to California.

The above type of scenario makes it extremely difficult for the civilian spouse to file any type of a post-judgment support motion(s). Accordingly, it is quite common that the servicemember’s child support is never increased or subject to any type of a periodic review. Moreover, it is extremely difficult for the civilian spouse to file any type of post-judgment motion(s) to seek any contribution from the servicemember for college tuition costs for the children. To avoid these problems, it is strongly advisable for the civilian spouse to try to have the jurisdiction of family law case transferred to his or her home state. If no spouse continues to live the state with the original jurisdiction, then it is almost certain that the new state will grant any motion to transfer jurisdiction.

As a side note, I have also noticed that in many military divorces the ex-spouses have extensive legal battles to determine which state has jurisdiction. It is quite common that ex-spouses will engage in an extensive legal battle to determine which state’s child support guidelines should be used. In many military divorces there are three or more states that may have “significant contacts” to the divorce case. The bottom line is that the child support guidelines vary tremendously all throughout the United States. Therefore, in many military divorce cases the civilian ex-wife will try to have jurisdiction declared to be in the state that has the highest child support guidelines. Meanwhile, the servicemember ex-husband will use his efforts to try to have jurisdiction declared to be the state that has the lowest child support guidelines.

2. What are the most common mistakes that a divorce lawyer makes in handling a military divorce?

It is extremely important to obtain the services of an experienced divorce lawyer who also has an extensive background in military divorce law. There are many quirks and intricacies of military divorce law that must be mastered by an attorney. A shrewd military divorce lawyer can provide you with invaluable legal advice that could benefit you for the rest of your life.

There are several mistakes that ordinary lawyers commonly make in military divorces. The most common mistakes are as follows:

  1. Not understanding the “10″ rule for dividing military pensions.
  2. Not understanding the special protections of the Servicemembers Civil Relief Act.
  3. Preparing a Qualified Domestic Relations Order to effectuate the equitable distribution of a military pension.
  4. Not understanding all of the different components of military pay.

Military Pay & “Gross Income”

3. How does a family court determine a service member’s gross income to calculate his child support award?

When a service member is getting a divorce, the first stage of the case is to determine the amount of the child support award. The court will need to have the income information from both spouses to determine the child support award. Both spouses will have to give the court their pay stubs, their W-2’s, and their income tax returns. Moreover, in a military divorce the servicemember will have to provide the court their Leave and Earnings Statement.

You can learn a lot from a Leave and Earnings Statement, including the service member’s pay grade, years of service, and gross pay. A service member’s gross monthly pay primarily consists of:

  1. Basic Pay, which varies depending upon the service member’s pay grade and years of service.
  2. Basic Allowance for Housing (BAH). Service members receive BAH unless they reside in military housing or the barracks. The amount varies, depending upon pay grade, dependent status, and home station zip code.
  3. Basic Allowance for Subsistence (BAS).
  4. Cost of Living Allowance (COLA), if the service member is stationed overseas.

A court must critically review the Leave and Earnings Statement when it calculates a child support award. It is important to review the LES, since there are many other allowances a service member may be receiving. These allowances may include such items as jump pay, family separation allowance, hostile fire pay, flight pay, hazardous duty incentives, hardship duty location pay, professional pay for medical officers, sea pay, submarine pay, dive pay, clothing allowances, overseas per diems, partial BAH, etc.

4. How does the New Jersey family courts treat military pay and allowances?

For purposes of calculating child support and maintenance, New Jersey divorce courts use a very broad definition of “gross income.” In a nutshell, the New Jersey child support guidelines include every dollar the service member receives on the LES, even though some of the allowances are invisible to the IRS and not taxable.

Moreover, New Jersey family law courts also impute income to a service member who receives lodging or food in lieu of BAH or BAS. The reason for imputing income to a service member is because military housing is considered an “in-kind payment,” much like a company car provided by a private-sector employer. Even though no rational person would claim that a barracks room at Fort Dix or at Maguire Air Force Base was the financial equivalent to proper family housing or the full BAH at the with-dependents rate, New Jersey divorce courts may pretend that they are.

Military Family Support

5. How does the military administer the child support laws on their servicemembers?

Child support problems are not as pronounced in the military as in the civilian world. Under Article 133 of the Uniform Code of Military Justice, it is a criminal offense for an officer to engage in conduct unbecoming of an officer and a gentleman. For enlisted personnel and officers, Article 134 makes it a crime for any member of the armed forces to dishonorably fail to pay a just debt that has become due and payable, provided that the individual’s actions were to the detriment of the armed forced or were such as to bring discredit upon the armed forces.

The military default rate in cases involving support orders is one-half that of the nationwide default rate in similar case. The military success in this area is primarily due to the fact that the military society is much more disciplined than the civilian community. There are rules governing a military members conduct, including requirements to pay just debts or face criminal prosecution. These rules virtually guarantee that servicemembers will comply with child support orders, unless they are willing to fact adverse administrative or criminal actions. This unique combination of the authority that permits the employer (the military services) to take adverse administrative and criminal sanctions against its employees (military members), makes the enforcement of child support orders far less problematic within the military community as compared to the civilian community.

Each branch of the military has their own individual regulations that require its servicemembers to pay support to their family members after any separation. If there is a court order or an agreement in effect then they take priority over any of the military regulations. The military regulations are only stopgap measures, and they focus on the particular circumstances of each case. These circumstances include issues such as “fault,” income levels, and/or number of children.

It can’t be over emphasized that the servicemember or the civilian spouse is almost always better off to file a support action in the local county court, instead of seeking support through the military chain of command. The military is adept at protecting the United States and in fighting terrorism. The family courts are experts at determining a fair child support award and enforcing it.

In the event that a servicemember is a “deadbeat” parent, then the civilian spouse seeking support can request assistance from the servicemember’s commander. If the local commander is of no help, then the local JAG office or Inspector General should be contacted. Unfortunately, in the military family support cannot be garnished unless there is a court order. Moreover, a commander has not authority actually divert a servicemember’s pay to the civilain spouse. However, a servicemember who fails to pay support could be punished under Article 92, UCMJ for violation of a lawful general regulation.

It is very tiresome to have to chase down your spouse each and every week for the payment of the child support. The benefits of having child support garnished can’t be overemphasized enough.

I always advise my military divorce clients to obtain a child support through the family court system instead of going through the military chain of command. A valid court order will subject the servicemember to an immediate wage garnishment. Therefore, if you receive a court order for child support then your child support checks can soon be “rolling in.”

If you are a servicemember, or spouse of a service member, stationed at Fort Earle, McGuire AFB, Fort Dix, Fort Monmouth, contact your legal assistance office for more information. However, if you are thinking of filing for a New Jersey divorce, legal separation or paternity action, you may need an attorney who knows both New Jersey law and military regulations for family support, child support, and maintenance/alimony.

6. What are the military guidelines for child support when there is no child support order?

There are administrative regulations that are adopted by the branches of the military service that state what to do in the absence of a court order or agreement for family support. Each branch of the military service has different rules for the support of the family members. While the Department of Defense (DOD) policy is that servicemembers will not use military service to avoid their family support obligations, each branch of the service implements the DOD policy through it’s owns rules and regulations. There is no set “military allotment” for family support.

7. How does the Army determine child support and spousal support?

Army Regulation 608-99, Family Support, Child Custody and Paternity requires soldiers to pay temporary support depending upon the family situation:

  1. Civilian spouse/children not in military housing: BAH-II (aka “BAQ”) at the with-dependents rate.
  2. Civilian spouse/children in military housing: Difference between BAH-II at the with-dependents rate and the without-dependents rate.
  3. Civilian spouse/children not in military housing and not living together: Pro rata share of BAH-II to each.
  4. Military spouse with no children: No support obligation.
  5. Military spouse with children split between parties: No support obligation.
  6. Military spouse with all children: The difference between BAH-II at the with-dependents rate and the without-dependents rate.

In-kind payments do not generally count toward the support obligation, except in very rare situations. In kind payments include paying for food or for lodging. A battalion/squadron commander may relieve the soldier of the spousal support obligation only in very limited circumstances, such as the civilian spouse having a higher income, being in jail, or committing physical abuse against the soldier, or the soldier having already paid support pursuant to AR 608-99 for 18 months. Finally, infidelity or abandonment does NOT constitute grounds for relief from paying the child support.

8. How does the Air Force determine child support and spousal support?

The Air Force Instruction 36-2906, Personal Financial Responsibility requires all airmen to “provide adequate financial support of a spouse or child or any other relative for which the member receives additional allowances for support. Members will also comply with the financial support provisions of a court order or written support agreement.”

Family support includes not only cash payments, but in-kind payments like buying groceries, paying bills, etc. Unlike the other branches, the Air Force does not attempt to define a specific dollar figure for child support and for spousal support. Instead, the Air Force leaves it up to the parties’ to work out an agreement as to the terms of support. The Air Force also encourages the parties to file a complaint for separate maintenance to determine the terms of family support. If a spouse makes a formal complaint of non-support to a commander, the commander cannot define an adequate level of support. Basically, the Air Force does not want to get involved in the family disputes of their Service members. The Air Force takes a “hands off approach,” and they encourage their airmen to resolve their separations and divorces in the local family courts.

9. How does the Navy determine child support and spousal support?

The Navy regulations provide a guide for family support, expressed as a fraction of the sailor’s “gross pay.” “Gross pay” is defined as base pay plus BAH, if entitled, but excludes all other allowances, such as BAS, hostile fire pay, etc. The Navy nonsupport policy provides that, in the absence of an agreement or an order, a unit commander must use the following as a guide fo the adequacy of support:

  1. Spouse only: 1/3
  2. Spouse and 1 minor child: 1/2
  3. Spouse and 2 or more children: 3/5
  4. 1 minor child: 1/6
  5. 2 minor children: 1/4
  6. 3 minor children: 1/3

A sailor may request a waiver of spousal support based on desertion without cause, physical abuse, or infidelity on the part of his or her spouse. The waiver request should be submitted to the Director, Navy Family Allowance Activity. It must include a complete statement of facts, the recommendation of the servicemember’s commander, and any substantiating evidence.

10. How does the Marine Corps determine child support and spousal support?

The Marine Corps regulations provide a guide for the monthly support standards that the Marines must follow. The standards depend upon the status of the family member. However, a Marine is never obligated to pay more than 1/3 or his/her “gross military pay” (defined as total pay and allowances):

  1. Civilian spouse/children in military housing: $200 per supported person.
  2. Civilian spouse/children not in military housing: The greater of BAH with-dependents or $200 per supported person.
  3. Multiple families: The greater of the pro rata share of BAH with-dependents or $200 per supported person.
  4. Military spouse: No support obligation.
  5. Military spouse with all children: The greater of BAH with-dependents or $200 per supported person.
  6. Military spouse with children split between the parties: the greater of the pro-rata share of BAH with-dependents or $200 per supported person.

A commanding officer may relieve the Marine of the support obligation in certain extenuating cases. These types of cases may occur where the Marine cannot determine “whereabouts and welfare of the child concerned,” the civilian spouse committed documented physical abuse against the Marine, or the family member to whom the support obligation would be owing is in jail.

… here to finish this article

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