If you or your spouse is serving in the military, there are special rules you need to be aware of as you go through the divorce process. Issues such as child custody and support, alimony, and division of pensions are dealt with differently than in a civilian divorce. Bari Zell Weinberger, a renowned family lawyer in New Jersey, answers common questions military couples have when divorcing.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Bari Zell Weinberger, Certified Matrimonial Law Attorney
Bari Zell Weinberger is a renowned family law expert and the founder of Weinberger Divorce & Family Law Group, New Jersey’s largest divorce and family law firm. She is Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney, a certification achieved by only 2% of the attorneys in New Jersey. Bari is also an experienced family law mediator, a published author, and a frequent media contributor on divorce and family law for both local and national audiences.
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Read the Transcript of this Podcast Below.
How is a military divorce different from a civilian divorce?
When filing for divorce from a military spouse or if you are the spouse serving in the military, it’s important to know that special rules apply to military service members, especially those on active duty. In a military divorce, the courts are sensitive to the fact that an active duty spouse may not be able to participate in the divorce according to the same timeline that is followed in a civilian divorce.
The Servicemembers Civil Relief Act allows a court to delay or stay the proceedings until he or she is available and offers other provisions. It can also be difficult to know where to file for divorce given that military families frequently move. There may be questions about child custody. The child may need to be cared for almost exclusively by one parent while the military parent is on active duty. How can kids keep in touch with their military parent and how can custody change after the parent returns home?
There are also issues surrounding military pensions and how they are divided in divorce. The rules are different from other civilian retirement accounts. There are other matters in divorce that are also specific in military families, including questions about military health insurance and base housing.
Military families are often on the move. How do spouses know which state they should file in? Are there residency requirements when filing for divorce?
Because military service can involve frequent moves from state to state as well as temporary moves out of the United States, residency requirements for the purpose of filing for divorce are more lenient. Under current rules, a service member or spouse may choose to file a complaint for divorce in one of three places:
- The state where the spouse resides – for example, New Jersey if the spouse is a legal resident.
- The state where the service member claims legal residence.
- The state where the service member is stationed.
If custody-related issues are present in your divorce, be aware that children must generally reside in a state for at least six months before the state court can issue custody and parenting time orders.
How are divorce papers served when a spouse is deployed or on active duty?
Each base should have an official who is designated to facilitate the serving of legal papers, typically either the Provost Marshal or another person with responsibility for law enforcement at the base. If the military member is off base or overseas, it may be difficult to serve him or her with divorce papers. It is possible to request service through the military authority, but the military spouse must agree to accept service.
Sending the papers via certified mail may be another possibility, as long as the spouse being served is willing to receive the mail. Your attorney can help you determine the best route.
Can active duty or deployment delay the divorce process?
Yes, it can. In a civilian divorce if the spouse doesn’t respond to papers or attend a scheduled hearing, a default judgment of divorce may be awarded to the plaintiff spouse. In a military divorce, service members are protected from default judgment if current military service or service within the previous 90 days is affecting the defendant’s ability to appear and present a case.
New Jersey has special protections for military parents seeking custody and parenting time with their kids. Can you explain what these protections are?
In 2013, the following rules were established in New Jersey to protect our state’s active duty military parents. These protections include that:
- The courts must wait until at least 90 days after a deployment ends before entering final custody orders in a case or making changes to any child custody and parenting time orders that existed when the parent was called into active duty.
- Military parents who will be unable to appear personally or fully participate in a custody or a parenting time hearing or evaluative process due to deployment and wish to have the matter settled before they deploy, they can request an expedited hearing date.
- Any temporary modifications to custody or parenting time plans during a parent’s deployment must allow the deployed parent to exercise custody and parenting time during periods of leave and must expire automatically when the deploying parent returns. The original orders will then go back into effect unless the non-military parent can demonstrate that this is against the child’s best interests.
- The deployed parent will also have options in appropriate cases to delegate parenting time during deployment to a designated person who has a close personal relationship with both the parent and child. We even have a blog on this very topic.
How are child support and alimony calculated?
In a military divorce, each branch of the military has its own policy regarding payment of temporary child and/or spousal support in the absence of a court order. Calculating correct amounts of support depends on accurate analysis of the leave and earnings statement. If necessary, the Department of Finance and Accounting Service (DFAS), will enforce state orders through wage garnishment.
What about the military spouse’s pension? Is it divided like other marital assets?
The Uniformed Services Former Spouses Protection Act allows states to treat a service member’s military pension accrued during marriage as a marital asset. But both the rules and the mechanics of distribution are different from those applying to civilian pensions and retirement accounts. For example, under the 10/10 rule, if a couple has been married for 10 years or more and the service member has completed at least 10 years of creditable service during the marriage, the DFAS will pay a former spouse’s share of a pension directly to the former spouse.
What happens to things like base housing and health insurance after divorce?
In general, following a divorce the military does not have an obligation to provide base housing to the former spouse. Rules may vary, but bases may provide 30 to 60 days following the finalization of the divorce for the former spouse to vacate base-provided housing. The need for the former spouse to pay for housing can be something that is addressed in the alimony award, if appropriate.
High healthcare costs have made medical benefits an issue in many divorces. Former military spouses may be eligible to continue their medical coverage under Tricare provided that the marriage lasted for 20 years, during which the military spouse served for at least 20 years – meaning the marriage and military service must overlap by at least 20 years, the former spouse does not have the medical coverage under an employer’s sponsored health plan, and the former spouse has not yet remarried.
Be aware that spouses married for 20 years with the terms stated above, but the military spouse serving only 15 years of creditable retirement service, are entitled to one year of medical care, but no other benefits. Also, after the first year and for spouses that do not meet a 20/20/20 rule or 20/20/15 rule, the continued health care benefit program can extend some medical benefits to former military spouses provided certain requirements are met.
What can service members and military spouses do to find out more about divorce in New Jersey?
I encourage listeners to download our guide, “Six Ways Military Divorce is Different from Civilian Divorce,” for more details on everything we’ve discussed today and more.
What special help can your firm provide to service members or military spouses who may be seeking a divorce?
Weinberger Divorce & Family Law Group is fortunate to have attorneys skilled in military divorce and family law issues. We also have attorneys and staff who are former military service members themselves, so the issues military couples face are those we truly understand. If you are a military service member or the spouse of a service member and have questions about divorce, child custody, or any related family law matter, please call us today to schedule a free attorney consultation.