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Tuesday, June 26, 2012

Military Divorce: Part II

This is the second post in our series on the topic of military divorce.


Every 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?

A court of a state where either spouse legally resides, or where the service member is stationed, can have jurisdiction over the divorce.

Retirement Pay/Benefits

As 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 spouses.

No 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.

One 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.

Garnishments 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 will.

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.

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Blogger Anthony Wright said...

I’m a Henderson family law attorney in Nevada. Henderson is very nice city to live while getting your divorce. You only need to live here for six weeks with the intent to remain indefinitely in order to have jurisdiction over your divorce. If you have children in another state, however, custody will not be a part of the divorce unless the children have lived in Nevada for at least the last six months. Nevada divorce laws allow for six weeks residency for personal jurisdiction and six months residency of the child for subject matter jurisdiction over Las Vegas child custody . If any of your clients require a Las Vegas child custody law firm, my firm is ready.

July 15, 2012 at 5:30 PM 

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