◊ Military Divorce Attorneys For Men Washington State, Seattle, King County
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Civilian courts, not military courts, preside over divorces of Service Members (SM). State laws will control all aspects of divorces of SMs unless a specific federal law or regulation requires otherwise. State laws determine parenting plans, custody, visitation, child support, spousal support, and property division.
Key Federal laws that control divorces of SMs include: the Service Members Civil Relief Act, the Uniformed Services Former Spouses Protection Act, the Uniform Code of Military Justice, and specific regulations within each branch of the armed forces.
State courts must have “jurisdiction” over the Parties before valid divorce-related orders and judgments may be entered. The Petitioner in a divorce action must be a resident in the State in which the divorce is filed, unless the State has a special exception for SMs stationed in the state. For example, in Washington State, a court has subject matter jurisdiction if a Party to a divorce is (1) a resident of Washington, (2) an SM stationed in Washington, or (3) married to someone who is a resident.
The SCRA was enacted December 19, 2003 and replaces the Soldiers’ and Sailors’ Civil Relief Act. SCRA provides protections for active duty SMs by delaying prosecution of lawsuit filed against SMs (including divorce, custody, and paternity proceedings), and protecting against default judgments. For example, if you are stationed in Iraq or Afghanistan, your attorney can postpone court action until you are able to appear in court. However, the SCRA contains a provision that allows courts to disregard SCRA protections if they are being abused.
There are several ways an SM can obtain an initial stay of 90 days. First, if the court determines that an SM is absent due to military service and that the SM may have a defense that cannot be presented without the SM’s presence, the court is required to grant a 90-day stay. Second, if the SM has not received notice of a proceeding, the court is required to grant a 90-day stay. Third, if an SM requests a stay and demonstrates that his or her military service prevents an appearance in court, the court is required to grant a 90-day stay. Stays may be renewed if the SM’s service continues to prevent the SM from appearing before the court.
A court cannot enter a default judgment against an SM unless SCRA procedures are followed. For example, the court must provide counsel for the absent SM. If a default judgment is entered in violation of the SCRA, the SM may ask the court to set aside the default judgment.
State law controls the creation of parenting plans and determining custody and visitation of children. Courts tend to favor a non-service member (“SM”) spouse over an SM spouse if the SM’s service obligations include prolonged, frequent, or unpredictable periods of separation from the children.
Although the SCRA can be used to stay custody proceedings, numerous courts have recognized the general rule that the best interests of the children control. Thus, courts have decided custody matters, particularly temporary ones, despite the stay provisions of the SCRA. You should be prepared to respond to the court’s concerns when requesting or challenging a stay of a permanent or temporary custody proceeding.
Washington courts have held that an SM may “assign” his or her visitation rights to another person while the SM is deployed. This is a special privilege for SMs. A civilian cannot assign their visitation rights. These State court rulings are at risk because they may be in conflict with the US Supreme Court ruling in Troxel v. Granville, 530 U.S. 57 (2000), which held that a statute granting third parties (in that case, grandparents) the right to child-visitation violated constitutionally protected parental rights. An SM is likely to have greater success if the assignee of the visitation right is closely related to the children (such as an adult sibling or grandparent).
The Uniformed Services Former Spouses Protection Act (USFSPA) permits, but does not require, states to treat a SM’s retirement benefits as property to be divided in accordance with the states’ divorce laws. Depending on the state’s applicable laws, a former spouse may be entitled to a portion of an SM’s retirement benefits. As a general rule, Federal law prohibits states from awarding a former spouse over 50% of an SM’s disposable retirement benefits.
Disability retired pay is not divisible or “disposable” under USFSPA. If a SM receives half of his retirement benefits in the form of disability pay and his former spouse is entitled to 50% of his disposable retirement pay, his former spouse will only receive 25% of the SM’s monthly retirement benefits. The amount of retirement funds available for division with a former spouse equals the SM’s full retirement benefits minus the portion designated as disability retirement benefits.
If a SM is disabled but able to continue service, or if a disability is discovered after the SM retires, the SM has the option of waiving a portion of his or her normal retirement benefits and having those benefits replaced with disability retirement benefits paid by the Department of Veteran’s Affairs. In this way the SM can reduce the amount of divisible retirement benefits while not reducing the total benefits received. The result is a smaller portion of benefits available to the former spouse.
In 2003, Congress passed legislation that will allow some SMs to receive disability benefits without waiving any normal retirement benefits. The effected SMs will keep their normal retirement benefits and have disability retirement benefits added to the total amount received. This legislation will be phased in until it is fully implemented in 2014. However, only those SMs who have twenty or more years of qualifying service and a VA disability rating of 50% or greater will qualify. For those who qualify, obtaining VA-paid disability retirement benefits will not reduce their divisible retirement benefits (or how much is owed to a former spouse).
Disability retirement pay is counted as income for purposes of calculating child support and maintenance payments. Thus, even though a state court cannot order an SM to pay a portion of his or her disability retirement benefits to a former spouse, receiving a large disability retirement payment can increase the SM’s payment obligations via a higher child support and maintenance award.
Retirement and disability retirement benefits are paid to SMs by the Defense Finance and Accounting Service (“DFAS”), which is the accounting firm for the Department of Defense. If a former spouse was married to an SM for ten years of the SM’s military service, the former spouse is entitled to receive his or her portion of the SM’s retirement benefits directly from DFAS. The former spouse must contact DFAS directly to initiate direct payment. If the former spouse was not married to the SM for ten years of military service, the former spouse must obtain his or her portion of the SM’s retirement directly from the SM.
A former spouse is not entitled to an SM’s retirement benefits until the SM actually retires, and federal law prohibits a court from forcing an SM to retire. A former spouse’s direct retirement payments from DFAS end with the death of the SM or the former spouse.
“Financial support” refers to required support payments for SM dependents aside from state law directed child support and former spouse maintenance. It is determined by a court order, written mutual agreement, or in accordance with regulations by each military branch. A SM who fails to pay financial obligations runs the risk of committing military crimes under Uniform Code of Military Justice (UCMJ).
Upon separation from a spouse, an SM may be required to pay financial support for the spouse and children, depending on the circumstances. Separation is generally determined by the date the spouse and SM cease living together or the SM is ordered away from the residence.
The rules for determining how much the SM must pay differ for each branch of the military and Coast Guard. Generally speaking, any court order setting forth financial support obligations for an SM is controlling. Absent a court order, any mutual agreement between the spouse and SM is controlling. Absent a court order and mutual agreement, the following rules determine how much financial support is due. These rules apply only if there is no valid court order or mutual agreement.
The Army rules are set forth in Army Regulation 608-99, a detailed regulation that includes helpful examples to clarify how the rules work in practice. Regulation 608-99 is available at http://armypubs.army. mil/epubs/pdf/r608_99.pdf (last visited Nov. 11, 2010). The army rules stress that any mutual agreement must be in writing to be enforceable. A court order or written agreement setting forth financial support obligations may be enforced in a civilian court. Absent a court order or written agreement, an SM’s obligation to pay financial support (as required by Army regulations) is not enforceable in court. However, Army rules state that an SM’s failure to pay financial support, including that required by Army Regulation 608-99, is a violation of Article 92 of the UCMJ and may be punished accordingly. An SM may make financial support payments voluntarily or via involuntary allotment or garnishment.
If no court order or written agreement exists, Paragraph 2-6 of Army Regulation 608-99 sets forth the required payments. Only the SM’s commanding officer or a Special Court-Martial Convening Authority may excuse payment required under Paragraph 2-6. A simple breakdown of financial support obligations under the Army rules is provided below.
A battalion commander or Special Court-Martial Convening Authority may excuse an SM from financial support obligations. The SM must petition for this relief and must produce information and documentation (or evidence the spouse is blocking efforts to obtain such). An SM may be released from financial obligations if:
Air Force rules are much more hands off than Army rules. Generally, the Air Force requires resolution through civilian courts as to the amount of financial support for dependents. The Air Force advises personnel to provide adequate support for family members. It further will recoup any BAH-WITH payments the SM has received if the SM is not using the dependent-based funds to support dependents.
The Marine Corps publishes a table, The Marine Corps Policy Interim Financial Support Standards, listing how much an SM owes for family financial support. The table lists two payment formulas for each given circumstance; the SM is required to pay the greater amount of the two. SMs may be punished by the Marine Corps for failing to pay required financial support.
In addition to standard court orders and written mutual agreements, an SM may be required to pay financial support to dependents if ordered to do so by a naval commander. Naval commanders can order SMs to pay a specified portion of their gross pay as financial support. Gross pay is defined for this purpose as base pay plus BAH and excludes BAS, hazardous duty pay, sea and foreign duty pay, and incentive pay.
An SM may be excused from providing financial support for a spouse (but not children) if the SM produces evidence of desertion without cause, physical abuse, or infidelity by the spouse.
The Coast Guard has established guidelines that, absent a valid court order or written agreement, determine what an SM owes for financial support. If an SM demonstrates a pattern of nonsupport, the SM may receive an administrative discharge for unfitness. If nonsupport is “notorious” or discredits the Coast Guard, the result could be a court-martial or other disciplinary proceedings. SMs have a defense to nonsupport if they acted in good faith, which includes reliance on legal counsel. Infidelity and desertion are defenses to non-payment of financial support to a spouse. Financial support for a child is excused if the child cannot be located or if the support seeker does not have custody of the child.
Child support and maintenance payments are controlled by state law. Military pay can be garnished for child support and maintenance. Some forms of military pay, such as Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence, are exempted from garnishment. A full list of funds exempt from garnishment is made at 5 C.F.R. §581.104. Depending on the circumstances, up to 50-60% of an SM’s disposable earnings may be garnished.
A Service Benefit Plan is an annuity program that provides continuing benefits to beneficiaries selected by the SM in the event of the SM’s death. The SM must be retired or retirement-eligible active duty to qualify for a Service Benefit Plan. Beneficiaries may be the SM’s spouse, children, or spouse and children.
In the event of divorce, a court may order an SM to continue providing Service Benefit Plan coverage to the former spouse. If the divorce occurs after retirement, former spouse coverage is not automatic; the SM has one year to elect former spouse coverage and file such with the Defense Financial and Accounting Service (“DFAS”).
If a former spouse was married to a SM for twenty years of military service, the former spouse is entitled to full continuing military health benefits, as well as continuing access to military commissary and exchanges. If the former spouse obtains employer-provided health care, military health benefits cease. However, the former spouse regains military health benefits if employer-provided health care ceases. Similarly, if the former spouse remarries, all the above-mentioned military benefits cease. However, if the former spouse gets divorced again, the former spouse is entitled to full military benefits again.
If an SM and spouse separate but do not get divorced, the spouse continues to receive full married military benefits. The spouse may also be entitled to additional financial support.
If a former spouse was married to an SM for twenty years, fifteen of which covered military service, the former spouse is entitled to health benefits for one year.
A SM who is convicted of domestic violence faces a range of adverse consequences, including and in addition to state law responses and remedies. An SM may be disciplined by the military, up to and including a court martial, for engaging in domestic violence. A domestic violence conviction can impact future promotions and the longevity of an SM’s career.
Commanding officers may issue Military Protective Orders, which are similar to civilian No Contact Orders. These orders can include a prohibition on the SM contacting a domestic violence victim or ordering the SM to reside in the barracks. Military Protective Orders require no notice to the SM or a hearing. Military Protective Orders are not enforceable in civilian courts, but violating such an order is a violation of a direct order and carries the military penalties associated with such.
If an SM is court-martialed or administratively separated from service due to abuse, the SM’s spouse and family members can obtain temporary benefits and compensation, such as housing, health care, access to commissary and exchange facilities, and temporary financial support. The degree of benefits and support depends on the remaining service obligations of the offending SM. Qualifying offenses against a spouse or family members include assault, battery, rape, sexual assault, murder, and manslaughter. If an SM is the victim of domestic violence, the SM may be relieved from paying financial support for the spouse.
Under the Lautenberg Amendment, anyone, including an SM, with a misdemeanor conviction of domestic violence is barred from possessing or using firearms. If an SM is convicted of misdemeanor domestic violence, he or she is not allowed to possess or use a gun, even in the course of standard military duties. Similarly, it is a crime for anyone, including other SMs, to give an offending SM a gun. If an SM is required to be proficient in firearm use and demonstrate such, be ready to stand guard, or be able to perform any other activity requiring the possession of a firearm, this prohibition can lead to a discharge for inability to perform duties. In other words, a domestic violence conviction can end an SM’s career under the Lautenberg Amendment.
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