From serving the complaint to property division, military families face some very different obstacles when seeking a divorce in Massachusetts. Here’s an overview of some of the legal and procedural challenges facing military families during divorce and how a qualified Massachusetts’ divorce attorney can assist you in navigating them.
1. Service of the Complaint
The first challenge in the divorce process is locating the military service member, if the location is not already known. After 9/11, the Department of Defense issued new guidelines that restricted public access to the locations of military personnel. However, there are still a variety of approaches that can be utilized depending on which branch of the armed services is involved.
These approaches include contacting the local armed forces recruiter, military legal assistance attorney, the Worldwide Military Locator services, and even the Federal Parent Locator service if children are involved. One crucial piece of information that is needed is the service member’s social security number. It is nearly impossible to locate a service member without it. Once the military service member is located, then the service of the court documents depends on whether the military member will accept service or not. If the military service member refuses to accept service, then service becomes much more complex and the approach taken will depend if the service member is in the US or stationed abroad. If child support is involved, there is an Executive Order requiring each federal agency to maintain an office that facilitates service of process in these matters.
2. Servicemembers Civil Relief Act (SCRA)
In 2003, the SCRA
was signed into law to enable those serving in the military to devote themselves to defending our nation by suspending any judicial and administrative proceeding they are involved in. The primary remedy under this act for domestic relations litigation, including divorce, custody and paternity matters, is a stay of the proceedings, or suspension of the case, until the service member is available to participate. In order to determine whether a stay in proceedings is necessary or available, the military status of the party must be determined. Once a service member has been served, but has not made an appearance, the court will decide whether or not to stay the proceedings, this may be done by motion of counsel or the court’s own motion. If the service member has notice of the proceedings they may file an application to stay the proceedings for at least 90 days. Additional stays may be requested beyond the 90 days, but are discretionary based on the court’s finding that the service member’s ability to defend or prosecute the action is “materially affected” by their active duty status.
However, in family matters, a case may not end at divorce. An appearance may have been entered by a service member in the original divorce case but assume a later contempt or modification action is brought. There is no requirement that the court be notified of the military status of the service member because an appearance was already entered during the original divorce. The only remedy for the service member in this situation if a judgment is entered would be a motion to re-open the judgment in the subsequent action by proving that he was prejudiced in his ability to defend himself by his military service.
3. Child Custody and Visitation
The SCRA is a shield to protect the service members, not a method to deprive the other parent of their rights by halting custody proceedings indefinitely. The courts have the power to issue a temporary order regarding child custody issues pending the final resolution of the matter. There are many military cases dealing with the issue of a parent with legal custody being deployed and the non-custodial parent seeking custody of the children. The courts find it nearly impossible to stay the proceedings under SCRA when that delay would require the court not to address the issue of what happens to the child when the parent with custody is gone. In drafting separation agreements, language regarding alternate custody arrangements in case of deployment are essential to avoiding these problems before they arise, including alternate parenting plans for long distance and local situations.
4. Support Obligations
Uniform Code of Military Justice (UCMJ), it is a crime to dishonorably fail to pay a just debt that has become due and payable, provided that the individuals’ actions were to the detriment of the armed force or were such as to bring discredit upon the armed forces. The sanctions for violation of this article of the code range from reprimand to separation from service. A just debt includes support obligations. The military default rate on support orders is one-half that of the nationwide default in similar cases. The military has adopted administrative regulations for support in the absence of a court order or agreement for family support. Each branch has its own rules for supporting family members.
Service members who are in the Guard or Reserve may face immediate changes in their ability to pay support when they are mobilized. If a support order is in place, it is essential to file a motion with the court to modify the support immediately and file a motion for an expedited hearing in order to ensure that prompt action is taken.
Domicile is an essential part of a divorce action since jurisdiction is founded on domicile. Federal law allows service members to retain their state of legal residence at the time they entered into military service for so long as they serve in the military.
6. Pension and Property Division
One of the most complicated issues when it comes to military divorce is division of retirement pay for service members. The Uniformed Services Former Spouses Protection Act governs the terms and conditions regarding the division of military retirement pay. The Act authorizes state courts to treat military retirement as martial property.
Massachusetts does treat military retirement as marital property. If retirement is awarded to a former spouse in a divorce, the former spouse may receive direct payments of their portion of the retirement pay from the Department of Finance and Accounting if the marriage was ten years or longer AND during the marriage the service member performed ten or more years of service creditable in determining their eligibility for retirement. The direct payments to a former spouse cannot exceed 50% of the disposable retirement pay.
However, if there are direct payments and a garnishment for child or spousal support, then the direct payments can be up to 65% of the disposable retirement pay. This does not mean that more than this percentage may be awarded during divorce, if a greater amount is awarded then it is the responsibility of the service member to pay the difference.
Another issue that arises during a divorce is the
Survivor Benefit Plan (SBP), which is an annuity that allows retired service members to provide continued income to a named beneficiary in the event of the retiree’s death. A former spouse will not be covered under an SBP unless a “former spouse election” is made to the Department of Finance and Accounting within one year of the date of divorce.