A Military Divorce Guide (Part 2)

The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com part 2 of 3

11. What is the best tip that I can use to collect child support from my “deadbeat” husband who is also a servicemember?

Whenever possible, use the military command structure to assist you to collect any child support or spousal support. If the lowest unit commander cannot help you or if he or she does not respond, then take your request to the superior of that officer. Document your requests, keep records, and use fax or e-mail transmissions whenever possible to send your requests and communications.

12. My ex-girlfriend has filed a child support case against me. I am now stationed in Iraq. Can I contest the determination of the paternity for the child?

In many child support cases, a preliminary consideration is the determination of the paternity of the child. Any litigation as to the paternity may be barred by a prior judicial determination establishing the servicemember as the father of the child. The most common example is the adjudication of paternity that is present in most divorce judgments. It is usually an essential element necessary to obtain a judgment for divorce. Likewise, it is an essential finding in the divorce judgment. The purpose of this requirement is to bar a subsequent litigation of paternity matters that should have been settled in the divorce case. Accordingly, the court will ordinarily deny any attempt by the former husband to reopen the issue of paternity as to the children shown to be his on the face of the divorce judgment. The servicemember also may be estopped from litigating paternity if he has signed a paternity affidavit or an acknowledgment of paternity.

If a servicemember has never acknowledged paternity in either a divorce case or a prior child support hearing, then he may have a right to a paternity test. In New Jersey most paternity tests are performed by Cell Mark labs. These tests are very simple, and the lab techs take a swab from the servicemember’s mouth. The DNA obtained from this sample is then compared with the DNA obtained from the child’s sample. The paternity results are usually available in 30 days or less. The cost to conduct the paternity test is usually around $250. The servicemember will have to pay Cell Mark directly to conduct the paternity test. If the test results are negative, then the State of New Jersey will reimburse the servicemember for the costs. If the paternity test reveals that the servicemember is the parent, then he is responsible for the costs to conduct the paternity test.

Garnishment of Military Pay

13. Can the military garnish my paycheck for my child support obligations?

In New Jersey divorce, legal separation or paternity cases involving child support or maintenance, the spouse can receive payments through a wage garnishment. A garnishment is authorized for child support and alimony (also called spousal support or separate maintenance). The military pay subject to a garnishment has several exceptions which are BAS, BAH, travel allowances. For many Service members, it means only their base pay is subject to garnishment.

14. What are the garnishment procedures that I must follow to collect from my “deadbeat” servicemember husband?

Federal law (42 U.S.C. 659) authorizes the garnishment of the pay of all members of the military. Moreover, the pensions of retired military members can also be garnished. The procedure for garnishment as follows: First, obtain a court order for garnishment. Second, you must serve the garnishment order to the Garnishment Operations of the DFAS. Once the papers are properly served, then the DFAS will then notify the servicemember and it will suspend the payment of any funds necessary to comply with the garnishment order. The DFAS is then required to serve notice of the garnishment order to the servicemember no later than fifteen calender days after the receipt of the garnishment order.

Division of Military Retirement Benefits

15. Can a military pension be subject to equitable distribution in a divorce case?

Yes. A servicemember’s military pension is often the most valuable asset in a New Jersey divorce. Many spouses often overlook the value of a pension. Since a military pension is also a marital asset, New Jersey can divide it just like any other marital asset. Therefore, it is paramount that each spouse should be knowledgeable as to how New Jersey divorce courts handle the equitable distribution of military pensions, VA Disability, and issues concerning the Survivor Benefit Plan (SBP).

A review of New Jersey caselaw specifically holds that a military pension is subject to equitable distribution. A military pension is divisible. Castiglioni v. Castiglioni, 192 N.J. Super. 594 (1984); Whitfield v. Whitfield, 222 N.J. Super. 36 (App. Div. 1987); (Holding that non-vested military retired pay is marital property); Kruger v. Kruger, 139 N.J. Super. 413 (App. Div. 1976); aff’d, 73 N.J. 464 (1977), (Holding that a post-divorce cola adjustment for a military pension is divisible.)

In a military divorce, almost all of the work done by the lawyers with regard to equitable distribution involves the division of the military pension. The bottom line is that the military does not pay their servicemembers adequately enough to enable them to accumulate any decent savings. However, the military does provide substantial health and retirement benefits to their servicemembers. In a military divorce context, it is very rare to have any vexing issues as to the equitable distribution of marital assets. In most military divorces the most valuable asset is the military pension. Therefore, in a military divorce it is of the utmost important to insure that the civilian spouse receives her fair share of the military pension.

16. What is the biggest myth about dividing military pensions?

First, to dispel the myth, all states, including New Jersey, have the authority to divide a servicemember’s military retirement, regardless of the length of the marriage. In the year of 1982, Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA). This landmark act permits, but does not require, the state courts to divide military retirement upon a divorce or a legal separation or annulment. 10 U.S. Code 1408.

There are no restrictions imposed on a New Jersey divorce court’s authority to divide a military retirement based solely on the the length of marriage. Many people, including many divorce lawyers mistakenly believe that a military pension can only be subject to equitable distribution if the marriage lasted at least 10 years. This is the biggest mistake that most divorce lawyers make when they handle a military divorce case.

What the USFSPA actually states is that the Defense Finance and Accounting Service (DFAS) will pay directly the former spouse’s share of the military pension if there were at least 10 years of marriage. The marriage also must coincide with 10 years of creditable military service. This rule is also commonly known as the 10/10 rule.

Many misinformed lawyers “sell out” their client, and they don’t pursue a fair share of a military pension. The major reason for this error is because many lawyers simply do not understand the concepts of dividing a military pension in a divorce. In New Jersey the family court can still divide a military pension for a couple that has been married less than 10 years. The main distinction is that in a marriage that is less than 10 years, the servicemember has to cut the check to pay his ex-spouse. The military or the DFAS will not pay a portion of a pension directly to the ex-spouse if the marriage was shorter than 10 years.

17. Can a military thrift savings plan (TSP) be subject to equitable distribution in a divorce case?

Yes. The National Defense Authorization Act allows servicemembers to contribute up to 7% of their basic pay to a Thrift Saving Plan (TSP). The Military does not offer any matching funds from the federal government. In summary, a military thrift savings plan is very similar to a private sector 401(k) plan. The individual’s taxes are deferred on the contributions and appreciation until they are disbursed. A military thrift savings plan is treated just like any other retirement asset. The thrift savings plan must be valued and it will be distributed via a Qualified Domestic Relations Order (QDRO).

18. What are the mechanics to effectuate a distribution of a military pension?

New Jersey caselaw has consistently held that military retirements are just like other pension plans, and they are “property.” Therefore, a military pension or retirement has consistently been subject to equitable distribution in a divorce.

A military retirement is a federal entitlement and it is not a qualified pension plan. Therefore, no Qualified Domestic Relations Order is required. The procedure to effectuate a division of a military pension is to simply send to the DFAS a DD Form 2293, Application for Former Spouse Payments from Retired Pay. Moreover, a certified copy of the court order or judgment of divorce that divides the retirement must accompany Form 2293. The order or divorce judgment should contain the following information:

1.An indication that the servicemember’s rights under the Servicemember’s Civil Relief Act were respected,
2.An indication of the New Jersey divorce court’s jurisdiction over the servicemember (either residence, domicile, or consent to jurisdiction, including not contesting jurisdiction),
3.The marriage date, and an indication that the 10/10 rule has been met, and
4.The percentage share (or a dollar amount) awarded to the former spouse.
It is important to be patient when you are dealing with the DFAS. It may take up to 90 days to receive the first payment. The DFAS will send the servicemember notice of the application. Thereafter, the servicemember then has 30 days to contest the payment(s).

19. What are the maximum payments that an ex-spouse can receive from the DFAS?

The maximum portion of a retirement that DFAS will pay to an ex- spouse as part of the equitable distribution is 50% of the servicemember’s disposable retired pay. This does not prevent a divorce court from dividing the military retirement and awarding a former spouse more than half. If a servicemember should be in this most unfortunate situation, then he or she will have to make up the difference between what the DFAS pays directly, and what the divorce court’s has ordered.

In cases where military pay is both awarded to a former spouse through equitable distribution, and subject to garnishment for child support or maintenance, then the maximum that the DFAS will pay to the former spouse directly is 65%. However, if the court order or the judgment of divorce requires payment that is greater then the 65% limit, then the servicemember would have to make up the difference between the amount DFAS pays out and the amount ordered.

Servicemembers Civil Relief Act

20. What is the Soldier’s and Sailors Civil Relief Act?

The most important law that protects the rights of our military men and women is the SSCRA, or the Soldiers’ and Sailors’ Civil Relief Act. Congress initially passed legislation at the start of World War II called the Solders’ Sailors’ Civil Relief Act (SSCRA) to provide protection to these in the armed formed. It was enacted in 1940, and the SSCRA was updated after the Gulf War in 1999 but it was still largely unchanged as of 2003. The Servicemembers Civil Relief Act (SCRA) was written to clarify the language of the SSCRA, and to update the SSCRA to reflect the changes in American life since 1940.

The Act was passed by Congress to enable those serving in the military to devote their entire energy to the defense needs of the nation, and to provide for a temporary suspension of any judicial and administration proceedings and transaction that must adversely affect the civil rights of servicemembers during their military service.

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