This is the second post in our series on the topic of military divorce.
court in the United States has its own laws about jurisdiction meaning rules
regarding what cases the court is allowed to hear. One form of jurisdiction is
personal jurisdiction—does the court have the right to compel a person or
organization to appear before it and pass judgment? Another form is subject
matter jurisdiction—does the court have the right to hear this particular case
about this particular topic?
court of a state where either spouse legally resides, or where the service
member is stationed, can have jurisdiction over the divorce.
was discussed before, the state court is what decides the extent of benefits
the former spouse of a service member is entitled to receive. Depending on the
state, marital property from a divorce can be divided equitably (i.e., what the
court considers “fair”) or it can be divided equally (a 50/50 split). The
Department of Defense though, places a ceiling on benefit awards to former
more than 50% of a service member’s benefits can be paid out to former spouses,
even if a) the divorce decree states otherwise or b) the service member has
more than one ex-spouse. It’s first come, first served, so if the first ex-wife
was already awarded 50% of the member’s benefits, then any subsequent ex-wives
will be denied a portion of the service member’s pay, regardless of what her
divorce decree says. This can come as a shock to many and is an important thing
to be aware of if your spouse is on his or her second marriage.
more jurisdictional wrinkle should be addressed. In order for a court to issue
an enforceable order regarding a service member’s retirement pay, it must have personal jurisdiction over the service member. By way
of example, if a spouse files for divorce in her home state of Georgia, but Georgia
has no personal jurisdiction over the service member spouse (no domicile, no
residence or no consent), then the Georgia court is not able to enforce any
order over the disposition of the military benefits.
and Child Support
Each of the military services have
regulations which require members to “provide adequate support” to family
members. The problem comes with implementation; no branch of the military has
the authority to force an individual to pay such support against his or her
There is no court martial equivalent to Michigan's felony non-support.
The best way of ensuring you receive the
child or spousal support that you are due is by obtaining a court order from the family court in your county. This
includes “temporary support orders,” that a court can issue pending a final resolution
of your divorce. If a civilian court has issued a formal order and a member of
the military still fails to pay, you are then permitted to return to court and
obtain or garnishment of your spouse’s wages.
42 USC § 659 is the federal
law that gives state courts jurisdiction to order garnishments of wages from
military salaries and benefits. Though state law determines the procedure for
how to obtain a garnishment order, federal law dictates how the garnishment
order is applied to military pay.
Unless state law specifies a
lesser amount, federal law provides a limit of 50% of the member’s total disposable
earnings for any workweek if the member is currently supporting a second family
(spouse or child) and 60% if the member is not supporting a second family. The
percentage may be increased by 5% if the child support (or spousal support)
arrearage is 12 weeks or more.
42 USC § 665 gives
jurisdiction to state courts over military members for child support
proceedings. Section 665 has the added provision of requiring that no action shall
be taken regarding the garnishment of wages of a service member until the
member subject to the child support proceeding has either consulted with a Judge
Advocate General, or until 30 days have passed after the service member was
given proper notice of the child support proceeding in instances where such a
consultation was not possible.
In the last post of this series, we will address adultery and other common divorce-related problems in the context of the active soldier.
Labels: court martial, divorce lawyer, family court, family law, military divorce, Uniform Code of Military Justice