Divorce cases where one or both spouses are in the military can be complicated. A military divorce must address the same issues as a civilian divorce including alimony, distribution of assets, child support, and child custody. Unlike a civilian divorce, a military divorce has certain considerations when one or both spouses serve our country and may be away on duty while a court case is pending. At Paris P. Eliades Law Firm, LLC, we are proud to represent military service members who are not able to attend court cases because they are on active duty. Contact Paris P. Eliades Law Firm, LLC for a consultation today.
Military divorce residency requirements
Similar to all divorces, a military divorce must fulfill a residency requirement in order to establish jurisdiction over a case. The United States judicial system understands that military members may not be able to establish residencies as easily as their civilian peers because they move around and are often away for long periods of time serving our country. Accordingly, residency requirements for military members have some special consideration. Under current laws, a military member or spouse of one can file for divorce:
- In the state where the couple has legal residence
- In the state where the military member claims legal residence
- In the state where the military member is stationed
Filing in New Jersey still requires meeting the state’s own residency rule. One spouse must be a bona fide resident of New Jersey at the time of filing and for at least one year before the complaint, except where adultery is the ground alleged. Time spent stationed in New Jersey does not automatically establish residency, and the state a servicemember claims as their legal domicile may differ from where they are currently assigned.
Serving papers to a servicemember
Like any civilian divorce, the defendant must be served papers. In the case where a spouse needs to serve papers to a servicemember, the issue becomes complicated. Military installations are not open to civilian process servers, and arrangements generally must be made through the installation’s legal assistance office or command, which may facilitate contact but cannot compel a servicemember to accept service. The person being served papers must be willing to accept the serve and if they do not, they can request a “stay” on the divorce, prolonging the process. Though they cannot stop the divorce forever, it is their right to put the divorce on hold while their duty stops them from participating.
Military members are protected against default judgment
In a civilian divorce process, if the other party does not act or answer the Complaint for Divorce, the case can proceed without them, culminating a default judgment. This is usually a binding legal verdict in favor of one party based on the inaction of the other. If a spouse does not show up for a court date, they are usually in default. An active servicemember is protected under the Servicemembers Civil Relief Act. Before entering a default judgment, the court must require the filing party to submit an affidavit stating whether the defendant is in military service. If the defendant is serving, the court must appoint an attorney to represent them, and must grant a stay of at least 90 days if there may be a defense that cannot be presented without the servicemember present, or if appointed counsel cannot reach them. A default judgment entered against a servicemember during service may later be reopened if military service materially affected their ability to defend and they have a meritorious defense. This is especially important for servicemembers who are involved in a child custody or support case. In a custody matter, a court may not treat a servicemember’s absence due to deployment, or the possibility of deployment, as the sole factor in deciding a permanent change of custody.
Military pension explained
One’s military pension is also a complicated matter. According to the Uniformed Services Former Spouse Protection Act of 1982, New Jersey courts can treat military pension as marital property and distribute it equitably with the rest of the assets. The 10/10 rule is often misunderstood. It does not decide whether a former spouse is entitled to a share of military retired pay. A New Jersey court can award a share regardless of how long the marriage lasted. What the 10/10 rule governs is how that share gets paid: if the marriage lasted at least 10 years and overlapped at least 10 years of creditable service, the Defense Finance and Accounting Service will send the former spouse’s share directly. Below that threshold, the court can still award a share, but the servicemember must pay it themselves.
The Survivor Benefit Plan
A share of military retired pay ends when the retiree dies. The Survivor Benefit Plan is the mechanism that prevents that share from disappearing, paying a surviving beneficiary a monthly annuity of up to 55 percent of the retiree’s elected base amount. A former spouse can be named as the SBP beneficiary, but the divorce judgment must require it, and a deemed election request generally must be submitted within one year of the order. Missing that deadline can permanently forfeit the benefit, which is why SBP should be addressed in the judgment itself rather than left for later.
Continued benefits after divorce
Separate from pension division, a former spouse may keep military health care and base privileges under what is known as the 20/20/20 rule. This requires at least 20 years of marriage, at least 20 years of creditable service, and at least 20 years of overlap between the two. A former spouse who meets all three keeps TRICARE coverage and commissary and exchange access, so long as they do not remarry. Where the overlap is at least 15 years but less than 20, the 20/20/15 rule provides one year of transitional TRICARE coverage without base privileges. These thresholds sometimes affect the timing of a divorce filing, and they are worth reviewing before a complaint is filed.
Contact an attorney that can guide you through a military divorce
If you are a service member or the spouse of one inquiring about divorce, you deserve the quality legal services of Paris P. Eliades Law Firm, LLC. Our committed attorneys are ready to guide you through your military divorce and help protect your rights, your family, and your assets while you serve our country or are divorcing a spouse who is on duty. Divorce can be an emotional ordeal and our compassionate firm is ready to ease you through the process. Contact Paris P. Eliades Law Firm, LLC for your consultation.