This post is the first in a three-part series addressing divorce in the context where one or both spouses are in the military.  With so many returning servicemembers, our hope is to provide some guidance for those who find that their pre-deployment marriage is no longer tenable.

Divorce is a painful enough when it’s relatively straightforward—a couple living in the same state, no children, pre-nuptial agreements, etc. However, when one of the divorcing spouses is a member of the armed services, a series of other complications exist. 

Laws, codes and manuals all contain regulations intended to protect both service members and their soon-to-be former spouses. Generally, the various branches of the armed services view divorce as a civil matter best left for state family courts to sort out. One exception, where the armed services can become directly involved (addressed in a later post), involves adultery.

What Law Governs?

First things first.  What law do we need to look at when diving into divorce among military members? For the most part, the laws of the state court where the divorce is occurring govern divorces involving military spouses. However, there are two federal statutes that anyone facing the prospect of a military divorce should be aware of.

The first law is the Uniformed Services Former Spouses Protection Act (USFSPA). Passed in 1982, the law serves the exact function its title suggests—protecting ex-spouses by ensuring they don’t lose entitlement to benefits gained from having been married to a military spouse. 

In particular, the law allows state courts to divide military pensions as marital property. This does not mean that an ex-spouse will automatically receive a portion of her service member husband’s (or visa versa) benefits. However, it does give the courts the option to award the ex-spouse a portion of the benefits if the laws of the state and the interests of justice allow it. There are certain limitations to the amount of benefits an ex-spouse will receive, but that will be discussed later.

Another law of import is the Servicemember’s Civil Relief Act. One of the main purposes of this law is to suspend court proceedings that would “adversely affect the civil rights of service members during their military service.” In other words, the law protects those in the military from the proverbial rock and a hard place that can occur when military service conflicts with pressing civil obligations, in this case, divorce proceedings. Articles 522 and 524 are particularly pertinent.

Section 522 allows any active or recently released (active service must have ended within the previous 90 days) service member to ask for a stay of any civil proceedings. The service member will have to explain how “current military duty requirements materially affect the service member’s ability to appear and stat[e] a date when the service member will be available to appear.” Section 524 allows the court, either on its own or at the behest of a service member, to stay a judgment or vacate any court order (such as a garnishment) if it can be shown that the member’s active military service prevented him or her from complying with the original judgment or order.

There are a few other important documents that require mention in any discussion of military divorce procedure. The Uniform Code of Military Justice gives military tribunals jurisdiction over all armed service members. While it generally does not cover divorce, there is one provision that is often used to prosecute adultery, which we will tackle later. The Manual for Courts-Martial is an executive order that provides administrative rules to enforce the UCMJ and also has a section directly addressing adultery. 

Over the next two weeks, the Law Blogger will post the rest of this series for our readers affected by, or interested in the military divorce.

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As our soldiers return from war in the Middle East, many cases of post traumatic stress disorder are becoming manifest.  Often, the PTSD shatters an already fragile marriage, strained to the break point from years long separation.

Many soldiers, having survived the war, come home only to be placed in a trick bag: struggling with PTSD while their marriage falls apart.  To complicate things even more, there are special rules that apply to military divorces.

The psychology of both partners to the marriage is affected by the homecoming.  The state-side spouse absorbed 100% responsibility for managing household tasks, child rearing, education, and all other domestic issues.  A sense of independence may have seeped into the spouse's "mindset" that often requires an adjustment when the other partner returns from war.

For his part, the returning soldier needs time and some space to decompress from war; especially if the individual is not only returning state-side, but also discharging from the armed forces.

If the soldier's deployment was for several years, a spouse may have developed an "interim relationship" which must now be dissolved if the marriage is going to survive.  Many do not.

The Servicemembers Civil Relief Act (SCRA) [formerly known as the Soldiers' and Sailors' Civil Relief Act] is a federal statute that governs issues of defaulted servicemembers and the related stay of proceedings in divorce actions.  One feature of SCRA is that divorcing servicemembers are entitled to have the judge appoint them an attorney in the family court.  Interestingly, however, the statute is silent as to the scope of the appointed attorney's duties and her right to compensation for services rendered.

In a military divorce, support is also governed by federal regulations; each branch of the armed services has promulgated policies in the form of regulations that require the servicemember to provide adequate support for family members.  To calculate support, the servicemember's "leave and earnings statement" must be obtained and deciphered.

To enforce a support order, the support payee must turn to the Defense Finance and Accounting Service.  The DFAS website has references to garnishment resources and information on designated agents.

Custody issues are resolved, for now, in accord with the state laws governing this issue within a divorce proceeding.  Many states have specific provisions within their custody statutes that deal with a servicemember.

Congress, however, has been considering various amendments to SCRA that would federalize custody issues arising within military divorces.  The ABA has prepared a "white paper" on the subject.

www.clarkstonlegal.com

info@clarkstonlegal.com