Today's guest author is Mark E. Sullivan, a retired Army Reserve JAG colonel. Mark practices family law in Raleigh, NC and is the author of THE MILITARY DIVORCE HANDBOOK (Am. Bar Assn., 2nd Ed. 2011), from which portions of this article are adapted. See his contact information below.
1. RETURN OF THE WARRIORS
Empty outposts overseas mean full billets and bedrooms back at home. In view of the “new phase of relations” between the U.S. and Iraq, using Vice-President Joe Biden’s language, many servicemembers (SMs) are returning home. The redeployment of military personnel back to their stateside assignments and their homes is the result of significant drawdowns in Iraq and Afghanistan. SMs who are returning from the Middle East are not only from the active-duty forces (Army, Navy, Air Force and Marines); they are also from the Reserve Component, namely, the National Guard and the Reserves. Thus the homecoming impact will be felt nationwide, not just in communities near military bases. While reuniting with one’s family will be a joyous experience for SMs, it may create significant stresses for some. And these stresses may lead to legal consequences.
Stresses may arise due to one party’s having been solely in charge of the home for the entire deployment, without any help and with heavy responsibilities for running the home, managing the budget, taking care of children and – quite often – holding down a job as well. Having been away for a year in most cases, the returning SM has his or her own issues. These SMs need time to decompress and to adjust to new responsibilities, routines and duties – both at home and at work.
Sometimes there is an “interim relationship” which was formed while one spouse was gone. If this is so, it will have to be dissolved so that the marriage may continue. When this doesn’t happen, then the marriage will be in trouble and a separation is definitely on the radar screen. The impacts on the parties include separation, interim support, domestic violence, temporary custody and many more issues.
The result for the family law attorney is a confusing welter of rules, laws, cases and problems. When does state law govern? When should the injured party seek redress through the military? How does federal law affect the conflict? Where can one locate co-counsel who is familiar with these matters, a consultant who can give quick and accurate advice, or an expert witness who is available in person or by phone or Skype to assist the court?
3. RULES AND RESOURCES
Where to find the resources for a military divorce case will depend on the issue involved. The usual matters involved are custody and visitation for minor children, support for the spouse and children, the role of the Servicemembers Civil Relief Act in default rulings and motions to stay proceedings, and division of the military pension. Domestic violence may also be involved in some family law cases involving military personnel. The well-read attorney is the one best armed to defend or prosecute in these areas. They are complex and often counter-intuitive. A mentor, consultant or expert will often be useful as a guide through the wilderness.
There are several sources of information for the attorney caught up in these problem areas. For the following scenarios, assume that the parties are Army Sergeant Fred Wilson and his wife, Maria Wilson, the mother of their two minor children.
4. SERVICEMEMBERS CIVIL RELIEF ACT (SCRA)
Formerly known as the Soldiers’ and Sailors’ Civil Relief Act, the SCRA is found at 50 U.S.C. App. § 501 et seq. The two most important areas in civil litigation are the rules for default judgments (when the SM has not entered an appearance) and the motion for stay of proceedings. The former requires an affidavit as to the Fred’s military status and the appointment of an attorney for Fred by the judge. The duties of the attorney are not specified, and there are no provisions for payment. The default section of the SCRA is at 50 U.S.C. App. § 521.
At 50 U.S.C. App. § 522 are the requirements for Fred’s obtaining a continuance (called a “stay of proceedings” in the Act) for 90 days or more.
The elements of a valid 90-day stay request are:
- A statement as to how the SM's current military duties materially affect his ability to appear and
- stating a date when the SM will be available to appear
- A statement from the SM's commanding officer stating that the SM's current military duty prevents appearance and
- stating that military leave is not authorized for the SM at the time of the statement
An overview of the Act is found at “A Judge’s Guide to the Servicemembers Civil Relief Act.” The Guide tells about the requirements and protections of the SCRA and the steps one should take to comply with the Act’s requirements. It contains a sample motion for stay of proceedings and what the appointed attorney needs to do to protect his or her newest client.
5. FAMILY SUPPORT- MILITARY RULES AND REGULATIONS
Fred is required to provide adequate support to Maria and the children; each of the military services has a regulation requiring adequate support of family members. The Air Force support policy is found at SECAF INST. 36-2906 and AFI 36-2906 The Marine Corps policy on support of dependents is found at Chapter 15, LEGALADMINMAN. The Navy Policy for support issues is at MILPERSMAN, arts. 1754-030 and 5800-10 (paternity). The policy of the U.S. Coast Guard is located at COMDTINST M1000.6A, ch. 8M. The nonsupport policies and rules of the U.S. Army are found at AR [Army Regulation] 608-99. See also the SILENT PARTNER info-letter on “Child Support Options” at the N.C. Bar Association website and/or the ABA website
Knowing Fred's pay and allowances is a key factor in determining support. All SMs receive a twice-monthly LES (leave-and-earnings statement). To learn how to decipher one of these, just type into any search engine “read an LES” to find a guide explaining the various entries on the form.
There are numerous garnishment resources at the website for the Defense Finance and Accounting Service (DFAS), located at www.dfas.mil . The statutory basis for garnishment is at 42 U.S.C. §§ 659-662 and the administrative basis is at 5 C.F.R. Part 581. A list of designated agents (and addresses) for military garnishment is found at 5 C.F.R. Part 581, Appendix A. Military finance offices will honor a garnishment order that is “regular on its face.” 42 U.S.C. § 659 (f). See also United States v. Morton, 467 U.S. 822 (1983) (holding that legal process regular on its face does not require the court have personal jurisdiction, only subject matter jurisdiction). Limits on garnishment are found in the Consumer Credit Protection Act, 15 U.S.C. § 1673.
6. CUSTODY AND VISITATION
The best source for information on military custody and visitation issues is usually your own state custody statutes. There are 43 states with specific provisions covering visitation and custody issues which arise when one or both parents are in the military. These include delegated visitation rights when a parent is absent due to military orders, visitation during leave, mandatory contact information, rules on not using Fred’s military absence against him in a custody determination and the use of expedited hearings and electronic testimony. “Counseling on Custody and Visitation Issues” is a SILENT PARTNER info-letter found at the N.C. Bar Association website and/or the ABA website
If Fred is retaining the children beyond the date of return in the custody order or keeping the children, and a custody order requires their return, then Maria can use Department of Defendant (DoD) Instruction 5525.09, 32 C.F.R. Part 146 (February 10, 2006) to obtain the return of children from a foreign country. In general, this Instruction requires SMs, employees, and family members outside the United States to comply with court orders requiring the return of minor children who are subject to court orders regarding custody or visitation.
7. MILITARY PENSION DIVISION
Rules on retired pay garnishment are found here at www.dfas.mil > “Find Garnishment Information” > “Former Spouses’ Protection Act.” In addition to a legal overview, there is a section on what the maximum allowable payments are and an attorney instruction guide on how to prepare pension division orders. Information on the Survivor Benefit Plan (SBP) is at the “Retired Military and Annuitants” tab (under “Survivors and Beneficiaries”) and at the “Provide for Loved Ones” link at this tab. Military pension division is set out at 10 U.S.C. § 1408, and the Survivor Benefit Plan is located at 10 U.S.C. § 1447 et seq. The Defense Department rules for both are in the DODFMR (Department of Defense Financial Management Regulation).
There are seven SILENT PARTNER info-letters on dividing military retired pay and SBP coverage. All of these are found at the websites shown above at the N.C. Bar Association website and/or the ABA website.
8. DOMESTIC VIOLENCE
The DoD Instruction on domestic violence is DoDI 6400.6 “Domestic Abuse Involving DoD Military and Certain Affiliated Personnel"(updated to September 20, 2011). It may be accessed here:
Department of Defendant (DoD) Instruction 5525.09, 32 C.F.R. Part 146 (February 10, 2006)
Other websites containing useful information about the rules and procedures in this area are:
www.vawnet.org (National Online Resource Center on Violence Against Women),
www.ncdsv.org/ncd_militaryresponse.html (National Center on Domestic and Sexual Violence) and
www.bwjp.org (Battered Women’s Justice Project).
An excellent summary of the remedies and responses is found in “Domestic Violence Report,” April/May 2001 by Christine Hansen, Executive Director of The Miles Foundation.
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Mr. Sullivan, a retired Army Reserve JAG colonel, practices family law in Raleigh, NC and is the author of THE MILITARY DIVORCE HANDBOOK (Am. Bar Assn., 2nd Ed. 2011), from which portions of this article are adapted. He is a fellow of the American Academy of Matrimonial Lawyers and has been a board-certified specialist in family law since 1989. He works with attorneys nationwide as a consultant on military divorce issues and to draft military pension division orders. He can be reached at 919-832-8507 and mark.sullivan@ncfamilylaw.com. His website is http://ncfamilylaw.com
Do you need a Michigan family lawyer experienced in military divorce, custody and support issues? Contact a lawyer from the Michigan Family Lawyer Directory.
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