Divorce is a complex legal process on its own. However, when a divorce involves a military spouse, there are often times a different set of legal rules and procedures that govern the process than those that are used in the civilian legal system. An example of this would be that federal law controls military pension plans, particular child support guidelines, and military worker’s compensation. As such, a family law attorney that is well versed in both civilian and family law will be better prepared to represent military families going through the divorce process.
Military attorneys have specialized knowledge of military laws, although they may not be military personnel themselves. Military divorce proceedings may become complicated if there are unresolved issues regarding child custody and support. If assets and benefits are being disputed, such as a military spouse’s retirement, veteran benefit payments, or health care benefits, this could also complicate matters.
Filing for divorce when one or both spouses are military members may be more difficult because of geographical obstacles. For example, one or both spouses may be stationed overseas. Those cases are difficult because jurisdiction or residency requirements for divorce, child support, and custody are generally determined by one’s permanent residence and not where they are currently stationed.
Another unique aspect of military divorce is the loss of military entitlements. In most cases, the spouse who is not a military member will lose their military entitlements when they divorce their spouse who is a military member. This could include identification cards, housing on base, healthcare, and insurance. The military member will retain their military entitlements.
Many military divorce cases have actually been what is called military romance scams. These are scams in which a person, generally overseas, poses as U.S. military personnel and becomes involved in a romantic relationship with a U.S. citizen. The citizen may be sending money or resources to the person they believe is a serviceperson. They may do this at the request of the scammer for “service related fees,” such as transportation, communication, medical fees, and marriage expenses. Most of these fees are invariably false.
Military romance scams are treated as any instance of fraud and may result in criminal fraud consequences. Some examples of criminal fraud consequences include possible jail time, as well as criminal retribution like paying back expenses to the victim. The issue with military romance scams is that they can be difficult to trace, as the scammers are often located overseas. They may also utilize untraceable emails and financial accounts.
As previously mentioned, there are federal regulations in place that govern all aspects of military divorce. The military courts consider it a duty to provide child support regardless of whether the service member is custodial or noncustodial. In civilian courts, it is generally only the duty of the noncustodial parent to provide child support payments. As to how military child support is calculated, that differs not only from state to state, but also between the different branches of the military.
Generally, military child support is calculated by adding the amount of money the service member makes, determining the gross monthly income and applying it to the attorney general’s tax chart. Then, it will be necessary to multiply that number by a specific percentage for each child that will receive support. It is important to note that, regardless of where the service member is stationed, you are able to enforce child support orders. This includes the United States as well as anywhere abroad. Additionally, federal law allows for wage garnishment for child support payments, whether the service member is active or retired.
Military life requirements are demanding, and as such, many service people worry that their legal rights may be compromised. Typically, the opposite is actually true, as military service people are typically allowed additional protections not granted to civilians, in order to safeguard their legal interests. Some examples of the most common and important additional protections include:
- Stays: If military service hinders a service person from actively participating in, or preparing their legal case, the military may grant the service person a stay of service. This stay is generally the time of service plus sixty days. A judgment or wage garnishment may also be stayed if the service person’s compliance is materially affected by their military service;
- Absence: If the service person is absent, counsel must be appointed on their behalf in order to request a stay; and
- Default Judgment: Service people always retain the ability to reopen any default judgment, under certain circumstances. If the service person can prove the following, they may be able to reopen the default judgment:
- There was no appearance in court;
- There is a legal defense that the service person is able to assert, but was not given the chance to do so; and
- The service person’s service affected their ability to assert their defense.
As can be seen, divorces are further complicated when one or both of the spouses are in the military. As such, you may wish to consult with a skilled and knowledgeable family law attorney who is familiar with both military law and civilian law. An experienced military family law attorney can educate you on your legal rights, as well as any potential legal remedies that may be available to your specific circumstances.