Friday, July 2, 2010

A Military Divorce Guide (Part 3)

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

21. How does the SCRA affect my divorce case?

From a New Jersey divorce, legal separation or paternity perspective, the SCRA applies to all proceedings, including post-decree matters, etc. The SCRA does not protect servicemembers in administrative proceedings or criminal cases. The SCRA also covers active duty servicemembers, reservists and members of the national guard.

Many servicemembers erroneously believe that the SCRA provides them with total immunity from being sued. This is another major myth in military law. The SCRA does not provide a servicemember with a blanket immunity against being sued or from being made a participant in a litigation proceeding. The primary remedy under the SCRA is that it halts a lawsuit(s) and a divorce case. In legal terminology the SCRA “stays the proceedings” issued by any tribunal or a court. These stay orders are uniquely useful in a divorce case. They provide a means for suspending the divorce until the servicemember who is a party is available to participate.

22. How does the SCRA enable a servicemember to “stay” a divorce case?

When a servicemember has not made an appearance, the family court’s next step is to decide whether to grant a stay of the divorce case. For a servicemember’s defense, the SCRA states that the court shall stay the proceedings for at least ninety days (upon application of counsel on the court’s own motion) if the court determines that there may be a defense to the action and a defense cannot be presented without the presence of the defendant.

Pursuant to 50 U.S. Code App. 202, the court may, on its own motion, and shall, upon application by a servicemember which meets these criteria, stay the divorce proceedings for at least 90 days if the:

1.The applicant is in the military service, or within 90 days after it ended;
2.The applicant has actual notice of the proceeding;
3.The application is in writing, and includes facts stating how military service materially affects ability to appear, and a date when the servicemember may appear; and
4.The application includes a communication from the servicemember’s commander that the military duty prevents appearance, and leave is not available.
The initial 90-day stay is mandatory. Thereafter, the servicemember may apply for a longer stay. The same criteria is used to evaluate any request for a longer stay. The court may deny an additional stay. However, the court is required to appoint a lawyer to represent the servicemember if a request for a longer stay is requested.

It is important to emphasize that simply being stationed overseas, thereby making it more expensive to appear, does not materially affect a servicemember’s ability to appear at court. Many servicemembers are permitted to take a leave from their duties. The family courts are well aware that servicemembers accrue 30 days of leave per year. DOD Directive 1327.5 section 6.25 provides in pertinent part:

When a servicemember requests leave on the basis of need to attend hearings to determine paternity or to determine an obligation to provide child support, leave shall be granted, unless (a) member is serving in or with a unit deployed in a contingency operation or (b) exigencies of military service require a denial of such request. The leave shall be charged as ordinary leave.

A servicemember who invokes this protection must justify the need for a stay, and have his base commander write the request. Please keep in mind that the family law courts in New Jersey which also has several military installations, work with servicemembers by allowing telephonic testimony, or scheduling hearings during periods of authorized leave. The result is that military personnel are protected, but family law proceedings can still continue. Finally, if a request for a stay is denied, the servicemember cannot then invoke the protections of the SCRA to try to set aside the default judgment.

23. How does the SCRA protect servicemembers from default judgments in a divorce case?

The SCRA also offers many protections for a servicemember from the entry of a judgment by default in a divorce case. A divorce judgment entered by default may not be lawfully entered against a servicemember in his or her absence unless the court follows the procedures as set out in the SCRA. As explained earlier, when the servicemember has not made an appearance, 50 U.S.C. App. 521 governs. The court must first determine whether an absent or defaulting part is in the military servicemember. Before the entry of a judgment of divorce or for an order for support, the moving party or the plaintiff must file an affidavit or a certification that sates “whether or not the defendant is in the military serve and showing necessary facts in support of the affidavit.” There are criminal penalties that are provided for filing a knowingly false affidavit or certification of non-military service.

50 U.S. Code App. 201, which applies to any divorce or a family law case provides servicemembers with relief against a default judgment for divorce. A plaintiff seeking a default judgment in a divorce case must first submit an affidavit or a certification stating whether the defendant is or is not in the military, or that the plaintiff does not know whether the defendant is in the military. The plaintiff must also attach a military search from the Defense Manpower Data Center DMDC. The military search is attached to the affidavit or certification of non-military service. The military search can be obtained from the DMDC website. A divorce judgment that is obtained without the affidavit and/or certification of non-military service is voidable if the servicemember later shows that his or her military service prejudiced the presentation of a defense.

24. How can an ex-spouse oppose a stay issued by the SCRA?

It is clear from the above that there are an abundance of protections that are provided to servicemembers from the SCRA. However, family law attorneys will be quick to recognize that these protections, especially the stay of the proceedings, can be an extreme hardship in many cases. Unpaid support and custody and visitation problems all confront military families. Therefore, in many cases it may be necessary for a military spouse to oppose a request for a stay of a divorce case.

Counsel for the military spouse can file a motion to vacate the stay based on the grounds that it is not made in good faith. Most courts hold that a servicemember must exercise due diligence and good faith in trying to arrange to appear at court. When a servicemember demonstrates bad faith in his or her dealing with the court, no stay will be granted.

The lawyer opposing the stay also should absolutely examine whether the servicemember’s presence is necessary. In many family law cases, the issues presented to the court are only by the pleadings and by paperwork, and not by live testimony. In the alternative, when the servicemember’s testimony is necessary, counsel for the civilian spouse can argue that this does not require personal presence. It might be possible to convince the court that technology makes testimony by video-teleconference by use of the Internet almost as good as live testimony. Sometimes the case can proceed on an interim basis with a temporary hearing. There is New Jersey caselaw that suggests that granting a temporary hearing(s) with regard to the determination a child support award, as a general rule does not significantly affect the servicembember’s rights. The reason for this holding is because child support orders are only interlocutory (temporary or interim) orders, and they can be subject to a modification in the future.

25. How does the SCRA impact the collection of a child support award?

A uniquely problematic area involves the initial determination of a child support award and the stays imposed by the SCRA. New Jersey law requires an “expedited process” in child support determinations. This is at odds with the concept of a stay of the proceedings while the servicemember parent is unable to appear in court due to military duties. In most cases, a preliminary determination of child support must be made within sixty days of the filing of the FD case or the complaint to determine child support.

The child support guidelines usually proscribe a formula for child support based on the income of one or both parents. In New Jersey child support cases, the family courts will still conduct a child support hearing even if the servicemember is not available. The family courts only need to have the parties’ income information to calculate a child support award. In most cases, the civilian spouse already has in her possession the couple’s tax returns and her husband’s pay info. In the majority of cases, this evidence is all that is needed by the court to calculate a child support award. Therefore, for routine child support cases the stay protections of the SCRA will not be rigorously applied. Moreover, the family courts will also try to have the servicemember participate in the child support hearing via a phone conference or by video-teleconferencing.

Former Spouse Military Benefits

26. What type of military benefits does a former spouse of a servicemember receive after a divorce?

A former spouse of a servicemember has available to him or her a wealth of military benefits. Upon obtaining a New Jersey judgment of divorce, the former spouse of a servicemember has a right to receive military benefits so long as he or she meets certain enunciated criteria. As the benefits are statutory entitlements, they are automatic and not subject to negotiation or any deviation by a divorce court in New Jersey.

27. What type of military benefits does a spouse receive during a legal separation?

Until a New Jersey divorce court issues a final judgment of divorce, a civilian spouse that separated from a servicemember retains full military privileges. These privileges include possessing an ID card, medical, military exchange, commissary, etc. Even though the servicemember can and he certainly should terminate the civilian spouse’s ability to cash checks on post by going to the PX/BX, he or she cannot confiscate the spouse’s ID card or otherwise suspend the spouse’s military privileges.

A civilian spouse that is separated still retains military medical benefits in New Jersey. If a civilian spouse has a medical condition, then it may be feasible and practical to only seek a legal separation instead of getting a full divorce. A permanent legal separation is called a “Divorce from Bed and Board.” A “Divorce from Bed and Board” is a remnant from the past. This type of proceeding is designed for spouses who do not intend to remarry. The main benefit of a “Divorce from Bed and Board” is that it will permit the civilian spouse to retain medical benefits. The civilian spouse will still be permitted to receive her Tricare benefits if there is only a permanent legal separation. I have recently seen a resurgence of “Divorce from Bed and Board” filings. The price of obtaining health insurance has gotten so cost prohibitive, that divorcing couple’s have to resort to having a permanent legal separation to enable both spouses to have adequate health insurance coverage.

The bottom line is that there is only so much money to go around in a military divorce. A servicemember may be able to save significant dollars in spousal support or alimony if a permanent legal separation is pursued instead of a full divorce. If there is a long marriage, most family courts will order a servicemember to contribute to the costs of the civilian spouse to obtain new health insurance. These additional costs may be overwhelming to a servicemember. Therefore, a “Divorce from Bed and Board” deserves a close look by any military couple that is planning to divorce.

Military housing is generally only authorized to servicemembers residing with their families. A military base will typically give a civilian spouse a reasonable time after separation to vacate on-post housing.

28. When is a former military spouse entitled to full Benefits under the “20/20/20″ rule?

Pursuant to 10 U.S. Code 1072, a former spouse of a servicemember is entitled to all military benefits and installation privileges, including medical, commissary, and military exchanges (PX/BX). A former spouse is also entitled to use such other amenities such as bowling alleys, theaters, etc.

The criteria to receive 20/20/20 benefits are as follows:

1.The ex-spouse must be married to the servicemember at least 20 years;
2.The servicemember must have had at least 20 years of creditable service; and
3.There must be at least a 20-year overlap between the marriage and the military service.
Any Medical benefits are suspended while the former spouse is covered by an employer-sponsored health care plan. Moreover, any medical benefits are terminated if the former spouse’s should remarry.

Commissary, military exchange (BX/PX) and other installation privileges are suspended while the former spouse is remarried. However, these privileges are reinstated upon the remarriage is terminated due to a death or a divorce.

29. When is a former military spouse entitled to full benefits under the “20/20/15″ rule?

An unremarried former spouse is entitled to one year of military medical care only (no commissary, military exchange, etc.) The unmarried spouse can only receive medical benefits if he or she is not covered by an employer-sponsored health care plan. Moreover, the following criteria must also be met;

1.The ex-spouse must be married to the servicemember at least 20 years;
2.The servicemember must have had at least 20 years of creditable service; and
3.There must be at least a 15-year overlap between the marriage and the military service.
30. Can a former military spouse receive COBRA health benefits offer the divorce?

Under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), Tricare will provide a divorced civilian spouse with 36 months of health insurance. This type of program is called the Continued Health Care Benefit Program. Unfortunately, the COBRA program is very expensive, and it is cost prohibitive for many military families. However, if the civilian spouse has a preexisting medical condition, it could be worthwhile.

A former military spouse has to be very prompt to apply for COBRA. The military spouse must submit a DD Form 2837 Continued Health Care Benefit Program Application within 60 days of the divorce, and mail it in with proof of your eligibility and a check for the first quarter of coverage.

31. Child Support information for recently activated national guard and reserve soldiers.

The NJ Office of Child Support & Paternity Programs (OCSPP) realizes that under Operation Enduring Freedom, many of you may be called to active duty, both at home and abroad. First and foremost, we join those who thank you for your service to our country.OCSPP also realizes that some of you may be involved with our program as either a custodial parent or a noncustodial parent. You may have an order to receive child support, or you may be ordered to pay support for your children.

OCSPP wishes to inform you of our policies that address those of you called to active duty, particularly in the areas of review and modification, income withholding and medical support.

After reading the following, should you have additional questions, please contact:

* The local Child Support office to which your case is assigned;
* The OCSPP Customer Service Unit via telephone at 1-877-NJKIDS1

Review and Modification

A custodial parent or noncustodial parent who has been called to active duty for a period of more than 30 days may request a review and modification due to an income change. The income change is considered a substantial change in circumstances for purposes of review and modification. That means the Child Support Program will complete a review of the order regardless of the age of the order and complete a modification regardless of whether the new amount differs by 20 percent from the existing obligation.

If you request a review of your order and a modification, please include:

* A copy of your latest leave and earning statement; and
* A copy of your orders to appear for active duty.

Send your written request and this documentation to the Child Support unit at the county Board of Social Services in which you have an order. For the address, click on Local Offices in the frame at left.

Medical Support

If you are ordered to provide health care coverage for your child(ren) and have not done so, we will ask the military to enroll the child(ren) in the appropriate health care plan.

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