MILITARY DIVORCE 101
by Steven Mason, Esq.
03/01/07

MILITARY DIVORCES 101

(by Steven A. Mason, Esq. U.S. Army, JAGC, retired)

The War on Terror has resulted in mass mobilizations of Reservists and National Guardsmen, men and women, who often face long deployments and separations from their spouses and families. Speaking as one who has been there and done that, such situations can cause considerable strain on relationships, even healthy ones. If the relationship is weak, military service can break it. This has been happening with greater frequency since the Iraq and Afghanistan wars have broken out. The question for practitioners, lawyers and mediators, is to recognize how such divorces differ from your average civilian one. This article is intended only as a brief overview of the problems often encountered. It is not intended to answer all your questions.

First, if the Respondent is the servicemember spouse, how do you find him or her, and how do you effect service of process? Usually the Petitioner has some helpful knowledge. The social security number, date of birth, and last known unit of assignment are important clues. Each armed force has a locator service that can confirm if a person is a member of that military service, and, if so, the unit of assignment. Chances of success are increased if you can provide this information.

Second, the commander of the unit of assignment can be contacted for assistance, if child or spousal support are at issue. Even without a court order, military regulations require each servicemember to contribute to the support of his or her dependents. Often, the servicemember is receiving additional financial allowances just for that purpose. Such allowances are non-taxable, and must be taken into consideration, when calculating child support guidelines.

Third, an understanding of the Servicemembers’ Civil Relief Act, which replaced the old Soldiers’ and Sailors’ Civil Relief Act, is essential. It is found at 50 U.S.C. App. §§501-594 (2004). It applies to anyone who is a member of the Army, Navy, Air Force, Marine Corps, or Coast Guard, who is on active duty, or, in the case of members of the National Guard, who have been called to active federal service for a period of more than 30 consecutive days to respond to a national emergency declared by the President. It applies to any Reservist who is ordered to report for military service, and it may also apply to commissioned officers of the Public Health Service and the National Oceanic and Atmospheric Administration (NOAA). Its protections apply to any judicial or administrative proceeding, except for criminal proceedings. Waivers must be in writing.

The Civil Relief Act has provisions for Stays of Proceedings, Vacation or Setting Aside of Default Judgments and Garnishments and Executions, and prohibitions of fines and penalties under certain circumstances. Any letter or “other communication” from a servicemember and his commanding officer requesting a stay of proceedings requires the court to grant a stay of at least 90 days. A court can grant its own stay, if it determines that a defense cannot be presented without the servicemember’s presence, and the servicemember cannot be contacted after due diligence.

Assuming these hurdles are overcome, or if the servicemember is himself the petitioner in family cases, the practitioner will need to understand the military pension system, if the servicemember is a career soldier; particularly if the servicemember is nearing 20 years of service, at which point military pension rights become vested. The division of a military pension is governed by the Uniformed Services Former Spouses Protection Act, 10 U.S.C. §1408. This Act and related regulations contain a complex prescription of rules, regarding entitlements, who can get them, how much is divisible and how they get divided and paid. Suffice to say, not all military spouses are entitled to a portion of military retired pay, and not all payments received by military retirees is divisible. This is an area that is a minefield for malpractice, and should not be attempted by anyone who does not have a thorough understanding of this compensation system.

To complicate matters further, what do you do if the servicemember is a reservist? Since 1948, reservists have had a compensation system of their own, involving years of creditable service, age, and points earned for participation in training and active duty. Definitions are important in this area, and it must also be understood that retired reservists are not entitled to any form of retirement benefits from the military, until they reach age 60. How do you divide retirement that is not being received, and may never be received if the servicemember dies before reaching age 60? Think of these letters: SBP. They stand for Survivor Benefit Plan, and they permit a servicemember to opt for a spousal annuity, which can pay 55% of the servicemembers’ anticipated retired pay. This raises new issues, such as, who will pay for the annuity, who is entitled to receive these payments, the former spouse or the new spouse, and how do you ensure that the government will honor your clients’ intentions? Federal law governs here, and again, there are traps for the unwary. Your Final Judgment will not trump federal law, if proper procedures are not followed.

Lastly, every servicemember knows that dependents of military personnel are entitled to certain benefits by virtue of their status as dependents. Medical insurance through Tricare is one of the most valuable and important ones. Upon divorce, the former spouse is no longer eligible for Tricare, and may have to resort to more expensive COBRA benefits, until those expire. Other benefits include dental, commissary privileges (at subsidized supermarket prices), post exchange privileges, and the use of other military facilities that may be available to the military community. All these can be lost when a divorce becomes final. Is that in the client’s best interest? Are there exceptions to these rules, and, if so, what are they?

As you can see, the military has a world of its own, governed by special laws and regulations that are a mystery to the uninitiated. When in doubt, get a consultant to answer your questions about these things. Better yet, get a consultant at the beginning, who knows the right questions to ask.