If you or your current spouse are in the military and you intend to file for divorce then the military status of the relationship can impact how the divorce is conducted and the outcome of the divorce or family law case. In fact the military status of ones’ spouse may determine, the jurisdiction of where the divorce may be filed, how child or alimony support is calculated, parenting plans, visitation schedules, custody, pension benefits, and medical insurance providers. In most situations an active military status of one spouse makes the divorce processes more complex as there are also military laws that may come into play during the divorce process that can impact the outcome or legal actions within the case – therefore it is generally recommended that you consult with an attorney experienced in family law.
Filing for Divorce:
Legal jurisdiction is often hard to determine in military family law cases. In fact it is one of the most frequently asked questions; “Where do I file for divorce?” In general civil cases jurisdiction is in the state and county in which the non-filing party resides. However, jurisdiction in some cases can be hard to determine especially if the other party may be currently stationed on a temporary basis or living far away at another military installation. If it is possible to have the other party agree to the jurisdiction of a particular court in the county and state in which you reside then it may be possible for that legal system to preside over your case. Otherwise, you will be required to file in the state and county of record in which the military has a last known verification of residency. If the question of jurisdiction is still an issue then it may be wise to consult an attorney that is knowledgeable about the “Residency and Domicile Requirements for Military Divorce.”
Support for Children and Spouses:
Service in the military does not bar against any requirements under state law to fulfill child or alimony obligations. Service men and women must still comply with all support orders and must remain current on all payments of support to date. In many ways support payments are easier to handle in military situations as it is less likely that the spouse serving in the military will deny payment or become late in providing payments. Most military branches ensure that payments are made up to date by issuing military sanctions; such as, punishment, imprisonment, and in serious cases dishonorable separation from their military service for any failures to maintain support obligations.
In most situations if a reasonable child support amount cannot be agreed on between the parties then the parties will be required to consult their states child support guidelines and use information’s provided in a Domestic Relations Financial Affidavit to calculate child support. However, in military situations if you and the other parent cannot agree to an amount of support, outside of court order, then you must consult military guidelines to determine the proper amount of support owed. Each individual branch of the military has its own system for determining family support. In most situations the amount of support owed is generally lower than support obligations determined under state guidelines. If you cannot independently determine the amount of child support owed by the state guidelines then it is important to consult with an attorney to ensure that the correct amount is received in your case. You may also consult with the Military’s Legal Assistance Office relative to your spouses or ex-spouses military branch.
One of the most difficult aspects in determining support is to establish the actual income of the service man or women. Income is the basis for determining both support and alimony and will need to be established before the court can determine an amount for either. Other important amounts to consider are the service member’s current payments for health insurance policies or employment related day care cost- in the case of child support. The base salary is the starting point in determining any support worksheet amount. Other important amounts can be determined and included after establishing the base salary and may include compensations for meals, housing, and other non-monetary benefits.
Do Not Use a Tax Return to Establish Income:
In most other cases parents will use a tax return to establish the annual income of the other parent to determine the amount of support; however, in military situations a tax return does not provide an accurate depiction of income as a majority of the income is tax free and will only provide a small amount of recorded taxable income. Instead of using a tax return it is possible to establish income by providing a LES or Leave and Earnings Statement. The LES will provide the military members base pay and other allowances and may also include the service members list of claimed dependents and the amount of leave granted. Most states include any food allowances or other non-monetary allowances as income. “The courts generally agree that since in-kind compensations are nontaxable that they can be included as income for the purposes of establishing and calculating support payments.” If for some reason you are denied access by the service man or women in obtaining a copy of their Leave of Earnings Statement then you may need to submit a Freedom of Information Act Request to the spouse that fails to cooperate – which will legally obligate the other party to provide such information.
Child Custody and Visitation:
Child Custody and Visitation arrangements often become the most difficult aspect to establish for military service members in a family law case. In many situations the military personnel are required to frequently relocate or may be required for deployment making it difficult to maintain custody or pursue visitations. It is highly important and necessary for military spouses to establish a family care plan that may function the same as a parenting plan in a civil case. The family care plan can establish the general constructs of custody and visitation in the event of relocation and deployment. In some situations; such as, divorce it may also be necessary to file for a parenting plan in conjunction to the family care plan. In the event of either parent should seek to determine unique visitation and contact arrangements in the event of distance, relocation, or deployment. In the event of deployment or relocation a court may grant phone calls and video chat visitation sessions in place of physical visitation. Furthermore, the courts may also establish temporary arrangements of alterations in child custody – which may be granted to the other parent, relative, or step parent. It is important to consult with an attorney during any proceeding involving child custody and visitation to ensure that you are receiving the most amount of benefit possible to serve in the best interest of your children in such circumstances.
Pension Rights and Other Benefits:
Divorce in the military still equals divorce and may still mean a division of all properties including benefits in some cases. Although a career in the military falls into the category of a career in the private sector the benefits of such a career are still obtainable for division in a divorce – the military is an employer and employer benefits may be equitably divided in a divorce. This means that benefits; such as, medical benefits, pensions, and life insurance policies may still be subjected to division in a final divorce decree. In the case of pensions and other benefits there are various legal issues to examine which may affect your outcome in a divorce proceeding. If you believe that your marriage has existed long enough for you or your spouse to claim a division to your pension or other benefits then you need to hire an attorney or other legal professional to handle these financial matters and ensure that the division is fair and will not negatively impact you in the future.
Length of Divorce:
Membership within the military by either you or your spouse may dramatically lengthen the amount of time required to settle or obtain a final decree in a family law or divorce case. This is especially true if the case involves a large amount of distance between the parties like in a deployment or relocation. This lengthening of the process of divorce is primarily due to federal law also known as the Servicemembers Civil Relief Act (SCRA) (50 U.S.C. Appendix § 502(2)). This particular law allows for the service man or women to receive special treatment in the way of court proceedings occurring within the United States. Special treatments under SCRA are designed to reduce the amount of tension concerning civil and family issues so as to make it easier for the service member to focus on their military duties. In most family law cases this means that a military service member may be afforded a delay in a state court or other proceeding which may affect their rights so long as they are able to demonstrate that proceeding would harm them if the case progressed. In some situations service men and women have delayed family court hearings for large portions of time
In emergency situations however it may be found that the case may continue despite perceived distractions from ones military duties and obligations. This is especially true in cases in which the military party has repeatedly used SCRA to delay a hearing and therefore generating an emergency situation and also in cases in which the other party is repeatedly not present for scheduled hearing dates with ample opportunity to be present at such dates requested and may have be available to take leave. In most cases where a time relief is not granted the court may make a temporary ruling on the case until the other party is present or may make a final hearing if the court believes that a final ruling maybe appropriate in the case.
You should consult an attorney when considering a divorce unless the marriage has been relatively short and or the military spouse has a very small number of assets. Negotiating a divorce without an attorney is extremely tricky and may in fact leave you stuck in a settlement agreement that can generate a significant loss of possible benefits, assets, and support. Legal assistance is most often needed from start to finish in most military cases so hiring an attorney with experience in military law and divorce/ family law is imperative.
Our divorce and family law attorneys at the Coleman Legal Group LLC have experience in family law and complex divorce matters and may be able to assist you in your divorce case. Call us at 770-609-1247 to discuss your questions with an attorney today.