Military Divorce: Part II

This is the second post in our series on the topic of military divorce.

Jurisdiction

Every court in the United States has its own laws about jurisdiction meaning rules regarding what cases the court is allowed to hear. One form of jurisdiction is personal jurisdiction—does the court have the right to compel a person or organization to appear before it and pass judgment? Another form is subject matter jurisdiction—does the court have the right to hear this particular case about this particular topic?

A court of a state where either spouse legally resides, or where the service member is stationed, can have jurisdiction over the divorce.

Retirement Pay/Benefits

As was discussed before, the state court is what decides the extent of benefits the former spouse of a service member is entitled to receive. Depending on the state, marital property from a divorce can be divided equitably (i.e., what the court considers “fair”) or it can be divided equally (a 50/50 split). The Department of Defense though, places a ceiling on benefit awards to former spouses.

No more than 50% of a service member’s benefits can be paid out to former spouses, even if a) the divorce decree states otherwise or b) the service member has more than one ex-spouse. It’s first come, first served, so if the first ex-wife was already awarded 50% of the member’s benefits, then any subsequent ex-wives will be denied a portion of the service member’s pay, regardless of what her divorce decree says. This can come as a shock to many and is an important thing to be aware of if your spouse is on his or her second marriage.

One more jurisdictional wrinkle should be addressed. In order for a court to issue an enforceable order regarding a service member’s retirement pay, it must have personal jurisdiction over the service member. By way of example, if a spouse files for divorce in her home state of Georgia, but Georgia has no personal jurisdiction over the service member spouse (no domicile, no residence or no consent), then the Georgia court is not able to enforce any order over the disposition of the military benefits.

Garnishments and Child Support

Each of the military services have regulations which require members to “provide adequate support” to family members. The problem comes with implementation; no branch of the military has the authority to force an individual to pay such support against his or her will.

There is no court martial equivalent to Michigan's felony non-support.

The best way of ensuring you receive the child or spousal support that you are due is by obtaining a court order from the family court in your county. This includes “temporary support orders,” that a court can issue pending a final resolution of your divorce. If a civilian court has issued a formal order and a member of the military still fails to pay, you are then permitted to return to court and obtain or garnishment of your spouse’s wages.

42 USC § 659 is the federal law that gives state courts jurisdiction to order garnishments of wages from military salaries and benefits. Though state law determines the procedure for how to obtain a garnishment order, federal law dictates how the garnishment order is applied to military pay.

Unless state law specifies a lesser amount, federal law provides a limit of 50% of the member’s total disposable earnings for any workweek if the member is currently supporting a second family (spouse or child) and 60% if the member is not supporting a second family. The percentage may be increased by 5% if the child support (or spousal support) arrearage is 12 weeks or more.

42 USC § 665 gives jurisdiction to state courts over military members for child support proceedings. Section 665 has the added provision of requiring that no action shall be taken regarding the garnishment of wages of a service member until the member subject to the child support proceeding has either consulted with a Judge Advocate General, or until 30 days have passed after the service member was given proper notice of the child support proceeding in instances where such a consultation was not possible.

In the last post of this series, we will address adultery and other common divorce-related problems in the context of the active soldier.

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Posted in: court martial,divorce lawyer,family court,family law,military divorce,Uniform Code of Military Justice

Military Divorce: Part 1

This post is the first in a three-part series addressing divorce in the context where one or both spouses are in the military.  With so many returning servicemembers, our hope is to provide some guidance for those who find that their pre-deployment marriage is no longer tenable.

Divorce is a painful enough when it’s relatively straightforward—a couple living in the same state, no children, pre-nuptial agreements, etc. However, when one of the divorcing spouses is a member of the armed services, a series of other complications exist. 

Laws, codes and manuals all contain regulations intended to protect both service members and their soon-to-be former spouses. Generally, the various branches of the armed services view divorce as a civil matter best left for state family courts to sort out. One exception, where the armed services can become directly involved (addressed in a later post), involves adultery.

What Law Governs?

First things first.  What law do we need to look at when diving into divorce among military members? For the most part, the laws of the state court where the divorce is occurring govern divorces involving military spouses. However, there are two federal statutes that anyone facing the prospect of a military divorce should be aware of.

The first law is the Uniformed Services Former Spouses Protection Act(USFSPA). Passed in 1982, the law serves the exact function its title suggests—protecting ex-spouses by ensuring they don’t lose entitlement to benefits gained from having been married to a military spouse. 

In particular, the law allows state courts to divide military pensions as marital property. This does not mean that an ex-spouse will automatically receive a portion of her service member husband’s (or visa versa) benefits. However, it does give the courts the option to award the ex-spouse a portion of the benefits if the laws of the state and the interests of justice allow it. There are certain limitations to the amount of benefits an ex-spouse will receive, but that will be discussed later.

Another law of import is the Servicemember’s Civil Relief Act. One of the main purposes of this law is to suspend court proceedings that would “adversely affect the civil rights of service members during their military service.” In other words, the law protects those in the military from the proverbial rock and a hard place that can occur when military service conflicts with pressing civil obligations, in this case, divorce proceedings. Articles 522 and 524 are particularly pertinent.

Section 522 allows any active or recently released (active service must have ended within the previous 90 days) service member to ask for a stay of any civil proceedings. The service member will have to explain how “current military duty requirements materially affect the service member’s ability to appear and stat[e] a date when the service member will be available to appear.” Section 524 allows the court, either on its own or at the behest of a service member, to stay a judgment or vacate any court order (such as a garnishment) if it can be shown that the member’s active military service prevented him or her from complying with the original judgment or order.

There are a few other important documents that require mention in any discussion of military divorce procedure. The Uniform Code of Military Justice gives military tribunals jurisdiction over all armed service members. While it generally does not cover divorce, there is one provision that is often used to prosecute adultery, which we will tackle later. The Manual for Courts-Martial is an executive order that provides administrative rules to enforce the UCMJ and also has a section directly addressing adultery. 

Over the next two weeks, the Law Blogger will post the rest of this series for our readers affected by, or interested in the military divorce.

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Posted in: adultery,divorce,military divorce,Servicemembers Civil Relief Act,UCMJ,Uniform Code of Military Justice