J.D. Harvard Law School ‘73
M.A. Columbia University
B.A. Yale University
Mediator, Judge Pro-Tem
Certified Family Law Specialist
licensed by the State Bar of California
Stan is a member of the
San Diego North County Bar Association.
Licensed to practice in California, Maryland, Washington D.C., & Georgia
Military divorces are different, right from the beginning. If we're talking about a service member who's on deployment, we have to know where he or she is in order to serve the member with the petition for dissolution of marriage. In some situations, there is no way to find out, because the nature of the member's current deployment may mean that the member's whereabouts is classified information. We also have to determine if our court will have personal jurisdiction over the member, even if we can serve the member properly.
Many service members maintain their legal residence in the state they lived in before they joined the service. Let's say we are talking about a female whose legal residence is in Alabama. We also know her current address, but she's not in California and she's never lived in California. Even if we can serve her, she may decide not to file a response. If she doesn't file a response, as a general rule the court doesn't have personal jurisdiction over her. We can still ask the court to enter her default, and the court can deal with custody of minor children in most circumstances, but otherwise as a general rule the court can't do anything else but dissolve the parties' marriage. For example, the court can't deal with the division of community property. If there is any of consequence, that's a problem.
To look at military divorce child custody, we’re going to paint a picture via hypothetical scenario. A military man marries a woman who is also in the military. They immediately have a child, and the wife retires to stay home and care for the child. The couple has a rocky relationship, to say the least. In the midst of a heated argument, the husband strikes his wife. The wife then takes her things and their child to go stay with her mother out of state. Let’s say Nevada for our reference. Now from Nevada, the wife files for divorce with the San Diego court, and requests spousal support. The odds are stacked incredibly for the wife’s favor. For one thing, her child is already enrolled in school in Nevada and she won’t be forced to return to California. Next, she doesn’t work. The husband, on the other hand, not only has his revenue from the military, but also extra income from things like basic allowance for quarters and other stipulations for military service members. What’s more, much of that money is non-taxable. The courts will take all sources of income into account when calculating child support, so even if he doesn’t see it, the lawyers will, and then his ex-wife will. Dad’s then left with two weekends of visitation a month to see his child, one of which he has to meet his ex at the Nevada border. Taking distance into account, he will rarely see his child unless he has the means to fly out of state twice a month, which is unlikely, especially considering the child support he will now be paying.
This sounds like a very raw deal for this military man. As we humans often do, we let our emotions control us and leave logic and reason behind, creating consequences that could’ve been avoided. So how can this be avoided specifically? First off, keep your hands to yourself. Husbands and wives, maintain self-control. Do not let present anger lead you to actions that can ruin so much. Additionally, keep both spouses working. If his wife hadn’t retired, this man wouldn’t be left with the crippling amount of child support he now has to pay.
Another problem in a military divorce is delay. Under the Service Members Civil Relief Act, a service member on active duty can obtain a postponement (called a stay) of court proceedings if the member's duties do not permit leave time to go to court. The procedure the member must follow to obtain a stay is complicated, but with persistence it can be accomplished.
Another problem is establishing the member's income for purposes of spousal and child support. A service member's pay stub is a Leave and Earnings Statement. It's nothing like a civilian's pay stub, and a lawyer unfamiliar with one will have a very difficult time understanding it. Dividing military retirement benefits is also considerably different than dividing civilian retirement benefits. This list of differences between military divorces and civilian divorces goes on and on. If you or your spouse is a service member, and you need a divorce, find a family law attorney that is experienced in a military divorce. We have that experience.