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Military Divorce

As any service member knows, special rules often apply to the military. A military divorce in NJ is no different. New Jersey is more relaxed about its residency requirements for military members than other states in the union concerning divorce; however, there are still significant considerations about property division, child and spousal support and relocation that service members need to consider when filing for a military divorce in NJ.

Residency Requirements

New Jersey will allow a service member to file for a divorce wherever he or she is stationed, even if they are not a resident of the state. Service members can file for divorce in one of three places if they file for a military divorce in NJ: the state where the service member is stationed, the state of the spouse’s residence, or the state of residence of the service member (where they plan to live after their service).

Military divorces can be somewhat complex in large part because most of the time, neither spouse remains in the same state after the divorce is finalized. Typically, the spouses return to their home states, or the service member will get transferred to another base. This can make it difficult for spouses to file post-finalization motions because New Jersey will retain jurisdiction over the suit unless and until a party files to transfer the case. It can be more challenging to file a motion to increase child support in the years after a divorce, and spouses may battle over which state has jurisdiction over the suit. Child support guidelines vary widely from state-to-state, and therefore, the custodial parent will usually try to obtain jurisdiction in whichever court has the most generous guidelines.

Child Support and Spousal Support

The military requires all members to provide support for their spouse and child in the event of a divorce. Each branch of the military issues its own guidelines in determining the amount of child support the service member will be obligated to pay, and they are not nearly as generous as the state support guidelines. Usually, these military provisions are not invoked if the state courts have already issued orders providing for the support of the child and spouse. For a military divorce in NJ, the first step a court must take in determining the child support award is to examine the pay stubs, W-2's and income tax returns of both parties. The court will also need to review the military member's Leave and Earnings Statement. This document reveals that member's pay grade, years of service, gross pay, and various allowances granted by the military. These can be crucial in determining child support, particularly if the service member is on active duty. They may receive additional earnings such as hazardous pay, overseas per diems, and the like. In a military divorce in NJ, the court will broadly consider each party's ‘gross income', including every dollar attributable to the military member on the Leave and Earnings Statement. The court is also entitled to impute income for a service member if they receive food or lodging because military housing is considered to be an ‘in-kind' payment.

Child support is strictly enforced in the military. It is a crime in the military to fail to pay a debt that is due and payable – including child support orders. Unlike in a civil court, a military member can be charged criminally if they default on their child support obligations. However, attempting to enforce a civil court’s child support order through the military system can be difficult, costly and complex – even for an experienced military divorce attorney. Each branch of the military has its own specific rules and regulations. The local family courts are the best option to ensure compliance with the law. The best possible way to ensure payment of child support is to obtain a garnishment order from the court. A valid court order will ensure that a percentage of the military member’s pay is automatically deducted from their wages, and detoured into the custodial parent’s possession for support of the child.

Pensions and Military Retirement

As in most other cases, for a military divorce in NJ, the pension is often the most valuable property. A military pension is considered to be a marital asset and is subject to division just like any other asset in the marriage – no matter how long the marriage lasted. Many believe that a military pension is not subject to division until the parties have been married at least ten years. This is a myth. Military pensions are subject to division at any point in the marriage.

The recipient spouse is allowed to receive payments directly from the Defense Finance and Accounting Service (DFAS) once ten years of marriage have also coincided with 10 years of military service. However, if the divorce is finalized before this point, the spouse will still be able to receive a share of the pension – they will just have to rely on the payment directly from their ex-spouse. The 20/20/20 rule allows spouses who have been married for 20 years which overlaps with 20 years of service to also receive full medical benefits from the military, provided they do not re-marry.

Once the pension has been properly divided, the mechanics of doing so are somewhat different from a civilian divorce. DD Form 2293 should be sent to the DFAS along with a certified copy of the court order which divides the pension. While the DFAS itself is limited to paying out up to 50 percent of the service member’s retirement, the courts are not limited in the same way for a military divorce in NJ. However, if the other spouse’s share of the pension exceeds fifty percent, they must rely on excess payments directly from that service member. It is helpful to find a lawyer with some experience in handling military divorces, as the administrative aspects of finalizing the case can be complex for the unfamiliar.

Soldiers and Sailors Civil Relief Act

For any member of the military, they are entitled to protections granted under the Soldiers and Sailors Civil Relief Act (SSCRA). The act provides a temporary stay for any judicial or administrative actions which could adversely affect their rights if they are deployed or on active duty. For a military divorce in NJ, the court must stay the proceedings for at least 90 days. The service member can apply for an additional or longer stay, although it is within the discretion of the court to grant or deny such a motion. Additional stays must be justified, and the SSCRA does not provide immunity from lawsuits. It simply ensures that military members are entitled to due process and fair notice when involved in a court action.

If you have any questions about getting a military divorce in NJ, call The Law Offices of Peter Van Aulen at 201-845-7400 today, for a consultation.

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