Military Divorce in New Jersey 101

How do federal laws and branch policies affect the New Jersey divorce process?

MILITARY DIVORCE 101An Introduction to Military Divorce

in New Jersey

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Presented by:

Divorce & Family Lawyers in New Jersey

MILITARY DIVORCE 101: DISCLAIMER

• This presentation contains general information and does not constitute legal advice.

• Be sure to direct specific questions about your own situation to an attorney.

• Weinberger Law Group is not affiliated with the United States Military.

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Sections

Military Divorce 101: An Introduction to Military Divorce in New Jersey

1. Common Procedural Issues.2. Payment of Child Support or Spousal Support.3. Issues in Child Custody and Parenting Time.4. Issues in Equitable Distribution of Property.5. Military Benefits in Divorce.

Questions & Additional Help

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Military Divorce 101

Common Procedural Issues

Military Divorce 101 1. Common Procedural Issues.

Residency Requirements

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Civilian:

In a civilian divorce case in New Jersey, one or both spouses must have resided in the state for at least one year immediately preceding the filing (minimum time period is waived if grounds for divorce allege adultery).

Military:

Servicemembers and spouses have less restrictive requirements and can file:

o In the spouse’s state of residence,o In the state where the servicemember is stationed, oro In the state where the servicemember claims legal residence.

Where can a servicemember claim legal residence?

o Either the servicemember’s “home of record,” which will be the state of enlistment indicated on the Leave and Earnings Statement (LES), or

o The state in which the servicemember intends to reside after leaving service.

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Things to consider if you have a choice of states:• The case will remain in the original state unless there is an

agreement or successful motion to transfer it to another state.

• Are any issues likely to be ongoing after one or both of you move to another state? (e.g. parenting orders or payment of child or spousal support.)

• Children must generally reside in a state for at least six months before the state court can issue custody and visitation / parenting time orders.

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Serving Divorce Papers

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To initiate a divorce, one spouse (the “plaintiff”) must:

• file a complaint for divorce and supporting documents with the family court, and then

• serve these papers on the other spouse (the “defendant”), along with a summons and proof of service.

• There are several ways to accomplish service:

o Service by Mail.

o Personal Service.

o Substituted Service on a Special Agent or Service by Publication.


Service by Mail

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If you know that the defendant will accept service, mail is usually the simplest method, regardless of civilian or military status:

• Send the complaint and supporting documents by regular and certified mail, with a return receipt request, to the defendant (or attorney of record).

• The defendant then returns a signed and notarized “acknowledgment of service” form for the plaintiff to file with the court.


Personal Service

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• Many U.S. military bases are closed to civilians and on some, federal law governs service rather than state law.

• If your spouse is in the U.S. but off post, the sheriff’s office or a process server can serve the papers according to state law. There will be a fee based on mileage and required number of trips.

• For service on post, contact the Commanding Officer or the Provost Marshall and follow instructions.


Service Overseas

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Service overseas can be especially challenging. If you know that your spouse may soon be deployed overseas, try to address any urgent situation before the deployment.

• Hague Convention Countries generally permit service by mail to a “central authority” in the host country.

• In non-Hague countries, the procedure will depend on the agreement between the host country and the U.S Military.


Protection from Default:Servicemembers Civil Relief Act (SCRA)

The SCRA is a federal law extending various protections to members of the service on active duty, including protection

from default.

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Ordinarily, if a defendant fails to respond to a New Jersey divorce complaint within 35 days, the plaintiff can ask for a

judgment of divorce by default.


Stay of Proceedings under the SCRA

• A judge cannot enter a default against a servicemember unless the servicemember waives the protections of the SCRA or the court first appoints an attorney for the servicemember.

• If the attorney cannot contact the servicemember or the court finds that current military service or service within the past 90 days is affecting the servicemember’s ability to appear and present a defense, the court will stay the proceedings for at least 90 days.

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Additional stays or stays after notice require an application including the following:

• A statement from the servicemember indicating:- how military duties affect the ability to appear, and- a date the servicemember will be available.AND

• A statement from the commanding officer indicating: - that military duty prevents the appearance, and - that leave is not currently authorized.

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Opposing a Stay of Proceedings

• The servicemember is required to act in good faith and exercise due diligence in attempting to arrange an appearance in court.

• If a non military spouse believes the servicemember is exaggerating the difficulty involved in making an appearance, or that the servicemember’s personal appearance is unnecessary, it is possible to oppose the stay of proceedings.

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Child or Spousal Support Payments

New Jersey Law and Military Policies

Military Divorce 101 2. Support Payments.

New Jersey Family Law:Payment of Child or Spousal Support

• Payment of both child support and spousal support in New Jersey is governed by state statute (N.J.S.A. 2A:34-23).

• New Jersey Court Rules (5:6A and Appendix IX) impose additional specific guidelines on payment of child support.

• If you do not have a court order or legal agreement addressing payment of support, branch regulations or guidelines govern temporary support payments.

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Temporary Family Support: U.S. Navy Policy

• Support is payable at different percentages of gross pay

depending on whether there is a spouse only (one-third), a

child only (one-sixth), a spouse and one child (one-half), etc.

• For details see: MILPERSMAN (Navy Personnel Manual)

1754-030.

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Temporary Family Support: U.S. Marine Corps Policy

• Minimum support payments are based on the number of

dependents or, if higher, a percentage of the housing

allowance.

• For details see: Chapter 15: Marine Corps Legal

Administration Manual.

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Temporary Family Support: U.S. Army Regulations

• Minimum support payments vary depending on living

arrangements and military or non-military status of the spouse.

• For details see: Army Regulation 608-99.

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Temporary Family Support: U.S. Coast Guard Policy

• Minimum support is calculated as a percentage of base pay

according to number of dependents, also factoring in

differences in housing allowances with or without dependents.

• For details see: Coast Guard Discipline and Conduct Manual

(Section 2.E.3. Support Requirement in the Absence of a Court

Order).

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Temporary Family Support: U.S. Air Force Policy

• The Air Force directive defers to state courts for calculations.

• Minimum support must be “adequate.”

• For details see: Air Force Instruction 36-2906.

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New Jersey Family Law:Military Income Available for Support

• Military income available for New Jersey child support and/or spousal support includes both basic and special pay, as well as any benefits provided in lieu of pay, such as food and housing.

• The servicemember's LES will include amounts for basic pay and any special amounts such as jump, dive, or flight pay.

• Calculating available gross income requires review of the LES and assessment of an appropriate value for any benefits received in lieu of pay.

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Enforcing Support Payments

• A court can sometimes proceed with an order for temporary support even if a servicemember is attempting to stay proceedings. A hearing may be held via telephone conference.

• Once you have an order for payment of support from the New Jersey Family Court, or from the New Jersey Office of Child Support Services, you can request wage garnishment through the Department of Finance and Accounting Service (DFAS).

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http://www.dfas.mil/garnishment.html

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Common Issues in Military Divorce

Child Custody and Parenting Time

Military Divorce 101 3. Child Custody & Parenting Time

New Jersey Family Law: Child Custody and Parenting Time

State law governs parenting orders and agreements in military divorce. (N.J.S.A. 9:2-4).

The overriding concern is the “best interests” of the children.

New Jersey favors “frequent and continuing contact” with both parents.

Parents are encouraged to make their own agreements.

Parents can agree on any combination of physical and legal custody that addresses a child’s best interests.

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Common Custody Issues in Military Divorce: Jurisdiction over Children

• Regardless of where a divorce is initiated, the state the children have resided

in for the past six months will have initial jurisdiction over them.

• Even if a child is a U.S. citizen, jurisdiction may belong to a foreign country.

• Establishing initial jurisdiction is critical, as authority over modifications

generally stays with the original court unless there is a mutual agreement or

successful motion to transfer.

• New Jersey law states that if a child is living out of state on a temporary

modification order, New Jersey will retain home state jurisdiction.

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Common Custody Issues in Military Divorce: Parenting During Service-Related Absences

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Special Considerations

o Deployments can be unpredictable and require difficult adjustments.

o Active duty can increase the risk of physical or psychological injuries.

o A New Jersey law enacted in 2013 addresses the need for special flexibility in child custody arrangements and parenting plans when one or both parents are in the service (N.J.S.A. 9:2-12.1).


Protection for servicemembers in New Jersey custody and parenting time matters:

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• New Jersey law prohibits permanent custody decisions while a parent is absent for 30 days or more due to deployment or treatment for a service-related health condition.

• Courts must wait at least 90 days after the parent’s return before entering permanent child custody orders or making permanent changes to any already existing custody and parenting time orders.

Timing of Orders



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Parents’ Responsibilities

• The departing parent must notify the other parent of the anticipated absence dates and location no later than the day before departure or the 10th day following receipt of official notice (whichever is earlier).

• To the extent feasible, the non-departing parent must facilitate electronic or telephone communication between the child and the absent parent.



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Changes are Temporary

• Temporary modifications must allow the departing parent to exercise parenting time during leave, and must expire automatically when the parent returns home.

• Original orders resume after the parent returns home unless the other parent can demonstrate that this is against the child’s best interests.



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Enhanced Flexibility

• A parent cannot base a request for a change in custody or parenting time on the other parent’s absence due to military service or treatment for a service-related health condition.

• Children do not automatically stay with the non-departing parent. The court will consider other options:


Flexible options for temporary changes in parenting orders during deployment or service-related treatment:

The child may stay with the other parent.

The child may accompany a deploying parent.

The absent parent may delegate parenting to a family member

with a close personal relationship to the child.

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Factors courts consider in determining appropriate modifications:

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Temporary modifications will be based on the best interests of the child after considering all relevant circumstances, including:

o Which parent has been the primary caretaker.

o What conditions the child would face in the deploying country (safety, childcare facilities, enrichment opportunities).

o What kind of arrangement the other parent or an alternate caregiver can provide for the child.


New Jersey Custody and Parenting Time Hearings: Expedited Dates and Presentation of Evidence

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• A parent facing an imminent deployment or treatment-related absence that would prevent appearance or full participation in an initial custody or parenting hearing, or a parenting evaluation, can request an expedited date before deployment without waiving rights to request a stay under the SCRA.

• If a parent is already out of the state, courts can take evidence and testimony by electronic means, such as telephone or internet conference.


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Common Issues in Military Divorce

Equitable Distribution of Property

Military Divorce 101 4. Property Distribution.

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New Jersey Family Law: Property Distribution in Divorce

• In New Jersey, all property and debt acquired by either spouse during marriage (except, generally, inheritances and individual gifts) is marital property.

• New Jersey is an “equitable distribution” state, meaning that upon divorce, all marital property is divided equitably, or fairly, but not necessarily exactly equally.

• Courts consider a long list of factors set out by statute (N.J.S.A. 2A:34-23.1).


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Distribution of Retirement Assets

• Distribution of retirement assets is often complicated and attorney assistance is crucial to avoid sacrificing rights.

• Retirement assets earned during marriage are marital property.

• Special rules apply to distribution of military pensions.

• If a servicemember has both a pension and another form of retirement asset, each will require a different method of valuation and a different type of court order for division.


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Distribution of Military Pensions:“The 10/10 Rule”

• States have authority to divide military pensions in divorce, regardless of the length of marriage.

• If a couple has been married for at least 10 years, and the servicemember has completed at least 10 years of creditable service during the marriage, the DFAS will pay a former spouse’s share of a pension directly to the former spouse.

• This is sometimes called “The 10/10 Rule.”


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Military Benefits in Divorce

Military Divorce 101 5. Military Benefits.

Military Benefits in Divorce

• Prior to final judgment, a civilian spouse who is separated from a servicemember will generally retain all military spousal privileges, including medical benefits under TRICARE.

• After final judgment, the spouse will be entitled to purchase transitional medical benefits under the Continued Health Care Benefit Program (CHCBP), which is similar to civilian coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA), providing coverage for up to 36 months.

• The servicemember’s dependent children remain eligible for TRICARE.

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Continuing Military Benefits:The “20/20/20” Rule

A former spouse retains full benefits—including commissary and exchange benefits—if all of the following conditions exist:

o The former spouse was married to the servicemember for at least 20 years,

o The former spouse has not remarried, and

o The servicemember had at least 20 years of creditable service during the marriage.

Medical benefits will be suspended during any period of employer-sponsored coverage.

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Continuing Military Benefits:The “20/20/15” Rule

A former spouse retains one year of medical coverage under TRICARE, with no additional benefits, if the following conditions exist:

o The former spouse was married to the servicemember for at least 20 years,

o The former spouse has not remarried,

o The servicemember had at least 20 years of creditable service, and

o At least 15, but less than 20, of the years of creditable service occurred during the marriage.

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Military Survival Benefits:Election to Pay Former Spouse

• A servicemember may elect to provide a monthly annuity under a Survivor Benefit Plan to a former spouse, BUT

• Electing to do so precludes an award to a current spouse.

• To be enforceable, the election must be in writing, signed, incorporated into the divorce decree and transmitted to the secretary of the appropriate branch of service within one year of the entry of the decree.

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For more information about New Jersey divorce, visit Weinberger Law Group.com,

or consult our various books on Divorce, Child Custody, Child Support, and more:

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Military Divorce 101 Questions? Can We Help?

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Do you have other questions about military divorce in New Jersey?

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