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Divorce FAQ's

 General Info

1. What are the residency and filing requirements for a servicemember to file for a divorce?

The state of New Jersey will allow a military member or a spouse to file for a divorce where he or she is stationed, even if neither the servicemember nor the spouse is a resident of New Jersey. New Jersey will often reduce or eliminate the residency requirement for military divorces.

A servicemember or a spouse has a choice of the following three states in which to file for a divorce;

1. The state where the spouse resides.
2. The state where the servicemember is stationed.
3. The state where the servicemember claims legal residency. This is where the servicemember’s home state, or where he or she plans to live after discharge or retirement.

In my experience, military divorce cases and child support disputes can become extremely convoluted. In a typical military divorce, the parties are divorced in the county court where the military base is located. Almost invariably, both spouses move back to their home state, or the servicemember is transferred to another base out of state. Consequently, the state where the original divorce case was filed retains jurisdiction over any post-judgment issues. I have had a case wherein New Jersey retained jurisdiction over a military divorce for more than 15 years even though the civilian spouse moved to Michigan, and the servicemember was transferred to California.

The above type of scenario makes it extremely difficult for the civilian spouse to file any type of a post-judgment support motion(s). Accordingly, it is quite common that the servicemember’s child support is never increased or subject to any type of a periodic review. Moreover, it is extremely difficult for the civilian spouse to file any type of post-judgment motion(s) to seek any contribution from the servicemember for college tuition costs for the children. To avoid these problems, it is strongly advisable for the civilian spouse to try to have the jurisdiction of family law case transferred to his or her home state. If no spouse continues to live the state with the original jurisdiction, then it is almost certain that the new state will grant any motion to transfer jurisdiction.

As a side note, I have also noticed that in many military divorces the ex-spouses have extensive legal battles to determine which state has jurisdiction. It is quite common that ex-spouses will engage in an extensive legal battle to determine which state’s child support guidelines should be used. In many military divorces there are three or more states that may have “significant contacts” to the divorce case. The bottom line is that the child support guidelines vary tremendously all throughout the United States. Therefore, in many military divorce cases the civilian ex-wife will try to have jurisdiction declared to be in the state that has the highest child support guidelines. Meanwhile, the servicemember ex-husband will use his efforts to try to have jurisdiction declared to be the state that has the lowest child support guidelines.

2. What are the most common mistakes that a divorce lawyer makes in handling a military divorce?

It is extremely important to obtain the services of an experienced divorce lawyer who also has an extensive background in military divorce law. There are many quirks and intricacies of military divorce law that must be mastered by an attorney. A shrewd military divorce lawyer can provide you with invaluable legal advice that could benefit you for the rest of your life.

There are several mistakes that ordinary lawyers commonly make in military divorces. The most common mistakes are as follows:

1. Not understanding the “10” rule for dividing military pensions.
2. Not understanding the special protections of the Servicemembers Civil Relief Act.
3. Preparing a Qualified Domestic Relations Order to effectuate the equitable distribution of a military pension.
4. Not understanding all of the different components of military pay.

Military Pay & “Gross Income”

3. How does a family court determine a service member’s gross income to calculate his child support award?

When a service member is getting a divorce, the first stage of the case is to determine the amount of the child support award. The court will need to have the income information from both spouses to determine the child support award. Both spouses will have to give the court their pay stubs, their W-2’s, and their income tax returns. Moreover, in a military divorce the servicemember will have to provide the court their Leave and Earnings Statement.

You can learn a lot from a Leave and Earnings Statement, including the service member’s pay grade, years of service, and gross pay. A service member’s gross monthly pay primarily consists of:

1. Basic Pay, which varies depending upon the service member’s pay grade and years of service.
2. Basic Allowance for Housing (BAH). Service members receive BAH unless they reside in military housing or the barracks. The amount varies, depending upon pay grade, dependent status, and home station zip code.
3. Basic Allowance for Subsistence (BAS).
4. Cost of Living Allowance (COLA), if the service member is stationed overseas.

A court must critically review the Leave and Earnings Statement when it calculates a child support award. It is important to review the LES, since there are many other allowances a service member may be receiving. These allowances may include such items as jump pay, family separation allowance, hostile fire pay, flight pay, hazardous duty incentives, hardship duty location pay, professional pay for medical officers, sea pay, submarine pay, dive pay, clothing allowances, overseas per diems, partial BAH, etc.

4. How does the New Jersey family courts treat military pay and allowances?

For purposes of calculating child support and maintenance, New Jersey divorce courts use a very broad definition of “gross income.” In a nutshell, the New Jersey child support guidelines include every dollar the service member receives on the LES, even though some of the allowances are invisible to the IRS and not taxable.

Moreover, New Jersey family law courts also impute income to a service member who receives lodging or food in lieu of BAH or BAS. The reason for imputing income to a service member is because military housing is considered an “in-kind payment,” much like a company car provided by a private-sector employer. Even though no rational person would claim that a barracks room at Fort Dix or at Maguire Air Force Base was the financial equivalent to proper family housing or the full BAH at the with-dependents rate, New Jersey divorce courts may pretend that they are.

Military Family Support

5. How does the military administer the child support laws on their servicemembers?

Child support problems are not as pronounced in the military as in the civilian world. Under Article 133 of the Uniform Code of Military Justice, it is a criminal offense for an officer to engage in conduct unbecoming of an officer and a gentleman. For enlisted personnel and officers, Article 134 makes it a crime for any member of the armed forces to dishonorably fail to pay a just debt that has become due and payable, provided that the individual’s actions were to the detriment of the armed forced or were such as to bring discredit upon the armed forces.

The military default rate in cases involving support orders is one-half that of the nationwide default rate in similar case. The military success in this area is primarily due to the fact that the military society is much more disciplined than the civilian community. There are rules governing a military members conduct, including requirements to pay just debts or face criminal prosecution. These rules virtually guarantee that servicemembers will comply with child support orders, unless they are willing to fact adverse administrative or criminal actions. This unique combination of the authority that permits the employer (the military services) to take adverse administrative and criminal sanctions against its employees (military members), makes the enforcement of child support orders far less problematic within the military community as compared to the civilian community.

Each branch of the military has their own individual regulations that require its servicemembers to pay support to their family members after any separation. If there is a court order or an agreement in effect then they take priority over any of the military regulations. The military regulations are only stopgap measures, and they focus on the particular circumstances of each case. These circumstances include issues such as “fault,” income levels, and/or number of children.

It can’t be over emphasized that the servicemember or the civilian spouse is almost always better off to file a support action in the local county court, instead of seeking support through the military chain of command. The military is adept at protecting the United States and in fighting terrorism. The family courts are experts at determining a fair child support award and enforcing it.

In the event that a servicemember is a “deadbeat” parent, then the civilian spouse seeking support can request assistance from the servicemember’s commander. If the local commander is of no help, then the local JAG office or Inspector General should be contacted. Unfortunately, in the military family support cannot be garnished unless there is a court order. Moreover, a commander has not authority actually divert a servicemember’s pay to the civilain spouse. However, a servicemember who fails to pay support could be punished under Article 92, UCMJ for violation of a lawful general regulation.

It is very tiresome to have to chase down your spouse each and every week for the payment of the child support. The benefits of having child support garnished can’t be overemphasized enough.

I always advise my military divorce clients to obtain a child support through the family court system instead of going through the military chain of command. A valid court order will subject the servicemember to an immediate wage garnishment. Therefore, if you receive a court order for child support then your child support checks can soon be “rolling in.”

If you are a servicemember, or spouse of a service member, stationed at Fort Earle, McGuire AFB, Fort Dix, Fort Monmouth, contact your legal assistance office for more information. However, if you are thinking of filing for a New Jersey divorce, legal separation or paternity action, you may need an attorney who knows both New Jersey law and military regulations for family support, child support, and maintenance/alimony.

6. What are the military guidelines for child support when there is no child support order?

There are administrative regulations that are adopted by the branches of the military service that state what to do in the absence of a court order or agreement for family support. Each branch of the military service has different rules for the support of the family members. While the Department of Defense (DOD) policy is that servicemembers will not use military service to avoid their family support obligations, each branch of the service implements the DOD policy through it’s owns rules and regulations. There is no set “military allotment” for family support.

7. How does the Army determine child support and spousal support?

Army Regulation 608-99, Family Support, Child Custody and Paternity requires soldiers to pay temporary support depending upon the family situation:

1. Civilian spouse/children not in military housing: BAH-II (aka “BAQ”) at the with-dependents rate.
2. Civilian spouse/children in military housing: Difference between BAH-II at the with-dependents rate and the without-dependents rate.
3. Civilian spouse/children not in military housing and not living together: Pro rata share of BAH-II to each.
4. Military spouse with no children: No support obligation.
5. Military spouse with children split between parties: No support obligation.
6. Military spouse with all children: The difference between BAH-II at the with-dependents rate and the without-dependents rate.

In-kind payments do not generally count toward the support obligation, except in very rare situations. In kind payments include paying for food or for lodging. A battalion/squadron commander may relieve the soldier of the spousal support obligation only in very limited circumstances, such as the civilian spouse having a higher income, being in jail, or committing physical abuse against the soldier, or the soldier having already paid support pursuant to AR 608-99 for 18 months. Finally, infidelity or abandonment does NOT constitute grounds for relief from paying the child support.

8. How does the Air Force determine child support and spousal support?

The Air Force Instruction 36-2906, Personal Financial Responsibility requires all airmen to “provide adequate financial support of a spouse or child or any other relative for which the member receives additional allowances for support. Members will also comply with the financial support provisions of a court order or written support agreement.”

Family support includes not only cash payments, but in-kind payments like buying groceries, paying bills, etc. Unlike the other branches, the Air Force does not attempt to define a specific dollar figure for child support and for spousal support. Instead, the Air Force leaves it up to the parties’ to work out an agreement as to the terms of support. The Air Force also encourages the parties to file a complaint for separate maintenance to determine the terms of family support. If a spouse makes a formal complaint of non-support to a commander, the commander cannot define an adequate level of support. Basically, the Air Force does not want to get involved in the family disputes of their Service members. The Air Force takes a “hands off approach,” and they encourage their airmen to resolve their separations and divorces in the local family courts.

9. How does the Navy determine child support and spousal support?

The Navy regulations provide a guide for family support, expressed as a fraction of the sailor’s “gross pay.” “Gross pay” is defined as base pay plus BAH, if entitled, but excludes all other allowances, such as BAS, hostile fire pay, etc. The Navy nonsupport policy provides that, in the absence of an agreement or an order, a unit commander must use the following as a guide fo the adequacy of support:

1. Spouse only: 1/3
2. Spouse and 1 minor child: 1/2
3. Spouse and 2 or more children: 3/5
4. 1 minor child: 1/6
5. 2 minor children: 1/4
6. 3 minor children: 1/3

A sailor may request a waiver of spousal support based on desertion without cause, physical abuse, or infidelity on the part of his or her spouse. The waiver request should be submitted to the Director, Navy Family Allowance Activity. It must include a complete statement of facts, the recommendation of the servicemember’s commander, and any substantiating evidence.

10. How does the Marine Corps determine child support and spousal support?

The Marine Corps regulations provide a guide for the monthly support standards that the Marines must follow. The standards depend upon the status of the family member. However, a Marine is never obligated to pay more than 1/3 or his/her “gross military pay” (defined as total pay and allowances):

1. Civilian spouse/children in military housing: $200 per supported person.
2. Civilian spouse/children not in military housing: The greater of BAH with-dependents or $200 per supported person.
3. Multiple families: The greater of the pro rata share of BAH with-dependents or $200 per supported person.
4. Military spouse: No support obligation.
5. Military spouse with all children: The greater of BAH with-dependents or $200 per supported person.
6. Military spouse with children split between the parties: the greater of the pro-rata share of BAH with-dependents or $200 per supported person.

A commanding officer may relieve the Marine of the support obligation in certain extenuating cases. These types of cases may occur where the Marine cannot determine “whereabouts and welfare of the child concerned,” the civilian spouse committed documented physical abuse against the Marine, or the family member to whom the support obligation would be owing is in jail.

11. What is the best tip that I can use to collect child support from my “deadbeat” husband who is also a servicemember?

Whenever possible, use the military command structure to assist you to collect any child support or spousal support. If the lowest unit commander cannot help you or if he or she does not respond, then take your request to the superior of that officer. Document your requests, keep records, and use fax or e-mail transmissions whenever possible to send your requests and communications.

12. My ex-girlfriend has filed a child support case against me. I am now stationed in Iraq. Can I contest the determination of the paternity for the child?

In many child support cases, a preliminary consideration is the determination of the paternity of the child. Any litigation as to the paternity may be barred by a prior judicial determination establishing the servicemember as the father of the child. The most common example is the adjudication of paternity that is present in most divorce judgments. It is usually an essential element necessary to obtain a judgment for divorce. Likewise, it is an essential finding in the divorce judgment. The purpose of this requirement is to bar a subsequent litigation of paternity matters that should have been settled in the divorce case. Accordingly, the court will ordinarily deny any attempt by the former husband to reopen the issue of paternity as to the children shown to be his on the face of the divorce judgment. The servicemember also may be estopped from litigating paternity if he has signed a paternity affidavit or an acknowledgment of paternity.

If a servicemember has never acknowledged paternity in either a divorce case or a prior child support hearing, then he may have a right to a paternity test. In New Jersey most paternity tests are performed by Cell Mark labs. These tests are very simple, and the lab techs take a swab from the servicemember’s mouth. The DNA obtained from this sample is then compared with the DNA obtained from the child’s sample. The paternity results are usually available in 30 days or less. The cost to conduct the paternity test is usually around $250. The servicemember will have to pay Cell Mark directly to conduct the paternity test. If the test results are negative, then the State of New Jersey will reimburse the servicemember for the costs. If the paternity test reveals that the servicemember is the parent, then he is responsible for the costs to conduct the paternity test.

Garnishment of Military Pay

13. Can the military garnish my paycheck for my child support obligations?

In New Jersey divorce, legal separation or paternity cases involving child support or maintenance, the spouse can receive payments through a wage garnishment. A garnishment is authorized for child support and alimony (also called spousal support or separate maintenance). The military pay subject to a garnishment has several exceptions which are BAS, BAH, travel allowances. For many Service members, it means only their base pay is subject to garnishment.

14. What are the garnishment procedures that I must follow to collect from my “deadbeat” servicemember husband?

Federal law (42 U.S.C. 659) authorizes the garnishment of the pay of all members of the military. Moreover, the pensions of retired military members can also be garnished. The procedure for garnishment as follows: First, obtain a court order for garnishment. Second, you must serve the garnishment order to the Garnishment Operations of the DFAS. Once the papers are properly served, then the DFAS will then notify the servicemember and it will suspend the payment of any funds necessary to comply with the garnishment order. The DFAS is then required to serve notice of the garnishment order to the servicemember no later than fifteen calender days after the receipt of the garnishment order.

Division of Military Retirement Benefits

15. Can a military pension be subject to equitable distribution in a divorce case?

Yes. A servicemember’s military pension is often the most valuable asset in a New Jersey divorce. Many spouses often overlook the value of a pension. Since a military pension is also a marital asset, New Jersey can divide it just like any other marital asset. Therefore, it is paramount that each spouse should be knowledgeable as to how New Jersey divorce courts handle the equitable distribution of military pensions, VA Disability, and issues concerning the Survivor Benefit Plan (SBP).

A review of New Jersey caselaw specifically holds that a military pension is subject to equitable distribution. A military pension is divisible. Castiglioni v. Castiglioni, 192 N.J. Super. 594 (1984); Whitfield v. Whitfield, 222 N.J. Super. 36 (App. Div. 1987); (Holding that non-vested military retired pay is marital property); Kruger v. Kruger, 139 N.J. Super. 413 (App. Div. 1976); aff’d, 73 N.J. 464 (1977), (Holding that a post-divorce cola adjustment for a military pension is divisible.)

In a military divorce, almost all of the work done by the lawyers with regard to equitable distribution involves the division of the military pension. The bottom line is that the military does not pay their servicemembers adequately enough to enable them to accumulate any decent savings. However, the military does provide substantial health and retirement benefits to their servicemembers. In a military divorce context, it is very rare to have any vexing issues as to the equitable distribution of marital assets. In most military divorces the most valuable asset is the military pension. Therefore, in a military divorce it is of the utmost important to insure that the civilian spouse receives her fair share of the military pension.

16. What is the biggest myth about dividing military pensions?

First, to dispel the myth, all states, including New Jersey, have the authority to divide a servicemember’s military retirement, regardless of the length of the marriage. In the year of 1982, Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA). This landmark act permits, but does not require, the state courts to divide military retirement upon a divorce or a legal separation or annulment. 10 U.S. Code 1408.

There are no restrictions imposed on a New Jersey divorce court’s authority to divide a military retirement based solely on the the length of marriage. Many people, including many divorce lawyers mistakenly believe that a military pension can only be subject to equitable distribution if the marriage lasted at least 10 years. This is the biggest mistake that most divorce lawyers make when they handle a military divorce case.

What the USFSPA actually states is that the Defense Finance and Accounting Service (DFAS) will pay directly the former spouse’s share of the military pension if there were at least 10 years of marriage. The marriage also must coincide with 10 years of creditable military service. This rule is also commonly known as the 10/10 rule.

Many misinformed lawyers “sell out” their client, and they don’t pursue a fair share of a military pension. The major reason for this error is because many lawyers simply do not understand the concepts of dividing a military pension in a divorce. In New Jersey the family court can still divide a military pension for a couple that has been married less than 10 years. The main distinction is that in a marriage that is less than 10 years, the servicemember has to cut the check to pay his ex-spouse. The military or the DFAS will not pay a portion of a pension directly to the ex-spouse if the marriage was shorter than 10 years.

17. Can a military thrift savings plan (TSP) be subject to equitable distribution in a divorce case?

Yes. The National Defense Authorization Act allows servicemembers to contribute up to 7% of their basic pay to a Thrift Saving Plan (TSP). The Military does not offer any matching funds from the federal government. In summary, a military thrift savings plan is very similar to a private sector 401(k) plan. The individual’s taxes are deferred on the contributions and appreciation until they are disbursed. A military thrift savings plan is treated just like any other retirement asset. The thrift savings plan must be valued and it will be distributed via a Qualified Domestic Relations Order (QDRO).

18. What are the mechanics to effectuate a distribution of a military pension?

New Jersey caselaw has consistently held that military retirements are just like other pension plans, and they are “property.” Therefore, a military pension or retirement has consistently been subject to equitable distribution in a divorce.

A military retirement is a federal entitlement and it is not a qualified pension plan. Therefore, no Qualified Domestic Relations Order is required. The procedure to effectuate a division of a military pension is to simply send to the DFAS a DD Form 2293, Application for Former Spouse Payments from Retired Pay. Moreover, a certified copy of the court order or judgment of divorce that divides the retirement must accompany Form 2293. The order or divorce judgment should contain the following information:

1. An indication that the servicemember’s rights under the Servicemember’s Civil Relief Act were respected,
2. An indication of the New Jersey divorce court’s jurisdiction over the servicemember (either residence, domicile, or consent to jurisdiction, including not contesting jurisdiction),
3. The marriage date, and an indication that the 10/10 rule has been met, and
4. The percentage share (or a dollar amount) awarded to the former spouse.

It is important to be patient when you are dealing with the DFAS. It may take up to 90 days to receive the first payment. The DFAS will send the servicemember notice of the application. Thereafter, the servicemember then has 30 days to contest the payment(s).

19. What are the maximum payments that an ex-spouse can receive from the DFAS?

The maximum portion of a retirement that DFAS will pay to an ex- spouse as part of the equitable distribution is 50% of the servicemember’s disposable retired pay. This does not prevent a divorce court from dividing the military retirement and awarding a former spouse more than half. If a servicemember should be in this most unfortunate situation, then he or she will have to make up the difference between what the DFAS pays directly, and what the divorce court’s has ordered.

In cases where military pay is both awarded to a former spouse through equitable distribution, and subject to garnishment for child support or maintenance, then the maximum that the DFAS will pay to the former spouse directly is 65%. However, if the court order or the judgment of divorce requires payment that is greater then the 65% limit, then the servicemember would have to make up the difference between the amount DFAS pays out and the amount ordered.

Servicemembers Civil Relief Act

20. What is the Soldier’s and Sailors Civil Relief Act?

The most important law that protects the rights of our military men and women is the SSCRA, or the Soldiers’ and Sailors’ Civil Relief Act. Congress initially passed legislation at the start of World War II called the Solders’ Sailors’ Civil Relief Act (SSCRA) to provide protection to these in the armed formed. It was enacted in 1940, and the SSCRA was updated after the Gulf War in 1999 but it was still largely unchanged as of 2003. The Servicemembers Civil Relief Act (SCRA) was written to clarify the language of the SSCRA, and to update the SSCRA to reflect the changes in American life since 1940.

The Act was passed by Congress to enable those serving in the military to devote their entire energy to the defense needs of the nation, and to provide for a temporary suspension of any judicial and administration proceedings and transaction that must adversely affect the civil rights of servicemembers during their military service.

21. How does the SCRA affect my divorce case?

From a New Jersey divorce, legal separation or paternity perspective, the SCRA applies to all proceedings, including post-decree matters, etc. The SCRA does not protect servicemembers in administrative proceedings or criminal cases. The SCRA also covers active duty servicemembers, reservists and members of the national guard.

Many servicemembers erroneously believe that the SCRA provides them with total immunity from being sued. This is another major myth in military law. The SCRA does not provide a servicemember with a blanket immunity against being sued or from being made a participant in a litigation proceeding. The primary remedy under the SCRA is that it halts a lawsuit(s) and a divorce case. In legal terminology the SCRA “stays the proceedings” issued by any tribunal or a court. These stay orders are uniquely useful in a divorce case. They provide a means for suspending the divorce until the servicemember who is a party is available to participate.

22. How does the SCRA enable a servicemember to “stay” a divorce case?

When a servicemember has not made an appearance, the family court’s next step is to decide whether to grant a stay of the divorce case. For a servicemember’s defense, the SCRA states that the court shall stay the proceedings for at least ninety days (upon application of counsel on the court’s own motion) if the court determines that there may be a defense to the action and a defense cannot be presented without the presence of the defendant.

Pursuant to 50 U.S. Code App. 202, the court may, on its own motion, and shall, upon application by a servicemember which meets these criteria, stay the divorce proceedings for at least 90 days if the:

1. The applicant is in the military service, or within 90 days after it ended;
2. The applicant has actual notice of the proceeding;
3. The application is in writing, and includes facts stating how military service materially affects ability to appear, and a date when the servicemember may appear; and
4. The application includes a communication from the servicemember’s commander that the military duty prevents appearance, and leave is not available.

The initial 90-day stay is mandatory. Thereafter, the servicemember may apply for a longer stay. The same criteria is used to evaluate any request for a longer stay. The court may deny an additional stay. However, the court is required to appoint a lawyer to represent the servicemember if a request for a longer stay is requested.

It is important to emphasize that simply being stationed overseas, thereby making it more expensive to appear, does not materially affect a servicemember’s ability to appear at court. Many servicemembers are permitted to take a leave from their duties. The family courts are well aware that servicemembers accrue 30 days of leave per year. DOD Directive 1327.5 section 6.25 provides in pertinent part:

When a servicemember requests leave on the basis of need to attend hearings to determine paternity or to determine an obligation to provide child support, leave shall be granted, unless (a) member is serving in or with a unit deployed in a contingency operation or (b) exigencies of military service require a denial of such request. The leave shall be charged as ordinary leave.

A servicemember who invokes this protection must justify the need for a stay, and have his base commander write the request. Please keep in mind that the family law courts in New Jersey which also has several military installations, work with servicemembers by allowing telephonic testimony, or scheduling hearings during periods of authorized leave. The result is that military personnel are protected, but family law proceedings can still continue. Finally, if a request for a stay is denied, the servicemember cannot then invoke the protections of the SCRA to try to set aside the default judgment.

23. How does the SCRA protect servicemembers from default judgments in a divorce case?

The SCRA also offers many protections for a servicemember from the entry of a judgment by default in a divorce case. A divorce judgment entered by default may not be lawfully entered against a servicemember in his or her absence unless the court follows the procedures as set out in the SCRA. As explained earlier, when the servicemember has not made an appearance, 50 U.S.C. App. 521 governs. The court must first determine whether an absent or defaulting part is in the military servicemember. Before the entry of a judgment of divorce or for an order for support, the moving party or the plaintiff must file an affidavit or a certification that sates “whether or not the defendant is in the military serve and showing necessary facts in support of the affidavit.” There are criminal penalties that are provided for filing a knowingly false affidavit or certification of non-military service.

50 U.S. Code App. 201, which applies to any divorce or a family law case provides servicemembers with relief against a default judgment for divorce. A plaintiff seeking a default judgment in a divorce case must first submit an affidavit or a certification stating whether the defendant is or is not in the military, or that the plaintiff does not know whether the defendant is in the military. The plaintiff must also attach a military search from the Defense Manpower Data Center DMDC. The military search is attached to the affidavit or certification of non-military service. The military search can be obtained from the DMDC website. A divorce judgment that is obtained without the affidavit and/or certification of non-military service is voidable if the servicemember later shows that his or her military service prejudiced the presentation of a defense.

24. How can an ex-spouse oppose a stay issued by the SCRA?

It is clear from the above that there are an abundance of protections that are provided to servicemembers from the SCRA. However, family law attorneys will be quick to recognize that these protections, especially the stay of the proceedings, can be an extreme hardship in many cases. Unpaid support and custody and visitation problems all confront military families. Therefore, in many cases it may be necessary for a military spouse to oppose a request for a stay of a divorce case.

Counsel for the military spouse can file a motion to vacate the stay based on the grounds that it is not made in good faith. Most courts hold that a servicemember must exercise due diligence and good faith in trying to arrange to appear at court. When a servicemember demonstrates bad faith in his or her dealing with the court, no stay will be granted.

The lawyer opposing the stay also should absolutely examine whether the servicemember’s presence is necessary. In many family law cases, the issues presented to the court are only by the pleadings and by paperwork, and not by live testimony. In the alternative, when the servicemember’s testimony is necessary, counsel for the civilian spouse can argue that this does not require personal presence. It might be possible to convince the court that technology makes testimony by video-teleconference by use of the Internet almost as good as live testimony. Sometimes the case can proceed on an interim basis with a temporary hearing. There is New Jersey caselaw that suggests that granting a temporary hearing(s) with regard to the determination a child support award, as a general rule does not significantly affect the servicembember’s rights. The reason for this holding is because child support orders are only interlocutory (temporary or interim) orders, and they can be subject to a modification in the future.

25. How does the SCRA impact the collection of a child support award?

A uniquely problematic area involves the initial determination of a child support award and the stays imposed by the SCRA. New Jersey law requires an “expedited process” in child support determinations. This is at odds with the concept of a stay of the proceedings while the servicemember parent is unable to appear in court due to military duties. In most cases, a preliminary determination of child support must be made within sixty days of the filing of the FD case or the complaint to determine child support.

The child support guidelines usually proscribe a formula for child support based on the income of one or both parents. In New Jersey child support cases, the family courts will still conduct a child support hearing even if the servicemember is not available. The family courts only need to have the parties’ income information to calculate a child support award. In most cases, the civilian spouse already has in her possession the couple’s tax returns and her husband’s pay info. In the majority of cases, this evidence is all that is needed by the court to calculate a child support award. Therefore, for routine child support cases the stay protections of the SCRA will not be rigorously applied. Moreover, the family courts will also try to have the servicemember participate in the child support hearing via a phone conference or by video-teleconferencing.

Former Spouse Military Benefits

26. What type of military benefits does a former spouse of a servicemember receive after a divorce?

A former spouse of a servicemember has available to him or her a wealth of military benefits. Upon obtaining a New Jersey judgment of divorce, the former spouse of a servicemember has a right to receive military benefits so long as he or she meets certain enunciated criteria. As the benefits are statutory entitlements, they are automatic and not subject to negotiation or any deviation by a divorce court in New Jersey.

27. What type of military benefits does a spouse receive during a legal separation?

Until a New Jersey divorce court issues a final judgment of divorce, a civilian spouse that separated from a servicemember retains full military privileges. These privileges include possessing an ID card, medical, military exchange, commissary, etc. Even though the servicemember can and he certainly should terminate the civilian spouse’s ability to cash checks on post by going to the PX/BX, he or she cannot confiscate the spouse’s ID card or otherwise suspend the spouse’s military privileges.

A civilian spouse that is separated still retains military medical benefits in New Jersey. If a civilian spouse has a medical condition, then it may be feasible and practical to only seek a legal separation instead of getting a full divorce. A permanent legal separation is called a “Divorce from Bed and Board.” A “Divorce from Bed and Board” is a remnant from the past. This type of proceeding is designed for spouses who do not intend to remarry. The main benefit of a “Divorce from Bed and Board” is that it will permit the civilian spouse to retain medical benefits. The civilian spouse will still be permitted to receive her Tricare benefits if there is only a permanent legal separation. I have recently seen a resurgence of “Divorce from Bed and Board” filings. The price of obtaining health insurance has gotten so cost prohibitive, that divorcing couple’s have to resort to having a permanent legal separation to enable both spouses to have adequate health insurance coverage.

The bottom line is that there is only so much money to go around in a military divorce. A servicemember may be able to save significant dollars in spousal support or alimony if a permanent legal separation is pursued instead of a full divorce. If there is a long marriage, most family courts will order a servicemember to contribute to the costs of the civilian spouse to obtain new health insurance. These additional costs may be overwhelming to a servicemember. Therefore, a “Divorce from Bed and Board” deserves a close look by any military couple that is planning to divorce.

Military housing is generally only authorized to servicemembers residing with their families. A military base will typically give a civilian spouse a reasonable time after separation to vacate on-post housing.

28. When is a former military spouse entitled to full Benefits under the “20/20/20” rule?

Pursuant to 10 U.S. Code 1072, a former spouse of a servicemember is entitled to all military benefits and installation privileges, including medical, commissary, and military exchanges (PX/BX). A former spouse is also entitled to use such other amenities such as bowling alleys, theaters, etc.

The criteria to receive 20/20/20 benefits are as follows:

1. The ex-spouse must be married to the servicemember at least 20 years;
2. The servicemember must have had at least 20 years of creditable service; and
3. There must be at least a 20-year overlap between the marriage and the military service.

Any Medical benefits are suspended while the former spouse is covered by an employer-sponsored health care plan. Moreover, any medical benefits are terminated if the former spouse’s should remarry.

Commissary, military exchange (BX/PX) and other installation privileges are suspended while the former spouse is remarried. However, these privileges are reinstated upon the remarriage is terminated due to a death or a divorce.

29. When is a former military spouse entitled to full benefits under the “20/20/15” rule?

An unremarried former spouse is entitled to one year of military medical care only (no commissary, military exchange, etc.) The unmarried spouse can only receive medical benefits if he or she is not covered by an employer-sponsored health care plan. Moreover, the following criteria must also be met;

1. The ex-spouse must be married to the servicemember at least 20 years;
2. The servicemember must have had at least 20 years of creditable service; and
3. There must be at least a 15-year overlap between the marriage and the military service.

30. Can a former military spouse receive COBRA health benefits offer the divorce?

Under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), Tricare will provide a divorced civilian spouse with 36 months of health insurance. This type of program is called the Continued Health Care Benefit Program. Unfortunately, the COBRA program is very expensive, and it is cost prohibitive for many military families. However, if the civilian spouse has a preexisting medical condition, it could be worthwhile.

A former military spouse has to be very prompt to apply for COBRA. The military spouse must submit a DD Form 2837 Continued Health Care Benefit Program Application within 60 days of the divorce, and mail it in with proof of your eligibility and a check for the first quarter of coverage.

31. Child Support information for recently activated national guard and reserve soldiers.

The NJ Office of Child Support & Paternity Programs (OCSPP) realizes that under Operation Enduring Freedom, many of you may be called to active duty, both at home and abroad. First and foremost, we join those who thank you for your service to our country.OCSPP also realizes that some of you may be involved with our program as either a custodial parent or a noncustodial parent. You may have an order to receive child support, or you may be ordered to pay support for your children.

OCSPP wishes to inform you of our policies that address those of you called to active duty, particularly in the areas of review and modification, income withholding and medical support.

After reading the following, should you have additional questions, please contact:

* The local Child Support office to which your case is assigned;
* The OCSPP Customer Service Unit via telephone at 1-877-NJKIDS1

Review and Modification

A custodial parent or noncustodial parent who has been called to active duty for a period of more than 30 days may request a review and modification due to an income change. The income change is considered a substantial change in circumstances for purposes of review and modification. That means the Child Support Program will complete a review of the order regardless of the age of the order and complete a modification regardless of whether the new amount differs by 20 percent from the existing obligation.

If you request a review of your order and a modification, please include:

* A copy of your latest leave and earning statement; and
* A copy of your orders to appear for active duty.

Send your written request and this documentation to the Child Support unit at the county Board of Social Services in which you have an order. For the address, click on Local Offices in the frame at left.

Medical Support

If you are ordered to provide health care coverage for your child(ren) and have not done so, we will ask the military to enroll the child(ren) in the appropriate health care plan.