Divorce, Child Custody, And Military Service
How Can Family Law Be Different for Members of the Military?
If you are in the Armed Forces, your experience in the Family Law Court will be very similar to a civilian.
However, some nuances are important for you and your attorney to understand.
Does Military Service Affect Custody?
Deployment in the midst of an ongoing child custody battle only exacerbates matters.
The government, however, has taken measures to protect the rights and interests of active-duty soldiers during deployment.
What Is The SCRA?
The Servicemembers Civil Relief Act (SCRA) was passed to protect the rights of active military members. This includes while a person serves their country and for up to a year after completing their duty.
The SCRA provides service members peace of mind from legal issues that arise at home while they fulfill their duty to their country. This act has proven effective in protecting employment, benefits, and property.
However, the blanket protection the SCRA provides does not cover custody issues.
Fortunately, the government instituted laws like the Uniform Deployed Parents Custody and Visitation Act to protect the rights of military parents.
What Is The UDPCVA?
The gap in protecting servicemen and women’s custody rights is closing. In 2012, the Uniform Law Commission (ULC) met to approve the UDPCVA.
The ULC describes this act as: "An act that provides standards and procedures for resolving visitation and custody issues affecting military personnel and their families, which may include resolution of matters in intrastate, interstate, and international contexts."
What this act means for servicemembers: This legislation seeks to standardize and simplify the rules governing military custody rights and visitation for deployed parents.
The passage of the UDPCVA marked a significant step forward in protecting the rights of military personnel and the parent-child relationships of American military members.
Some civilian parents file for custody during a military deployment, hoping this gives them an advantage. The Servicemembers Civil Relief Act, however, provides safeguards for service members and women.
Federal law provides special treatment for members of the armed forces in court cases.
For military members, the SCRA puts an automatic stay on your case so a judge can’t rule for an allotted time. This is to give the deployed parent the opportunity to receive notification and take any necessary legal steps.
The SCRA means the process moves much more slowly than usual. Service members get additional time to respond to legal documents, and hearings may be postponed until they return from deployment.
While military service is considered in custody cases, the best interests of the children remain the highest priority.
Things may be delayed, but the child's immediate health and well-being take precedence. Even if there is a successful SCRA request for a stay, the court may still issue a temporary custody order to the parent at home. This helps quash abuse of the SCRA and also ensures children are adequately cared for at all times.
Who Has Jurisdiction In Your Case?
Military families often move from base to base and city to city. When it comes to military divorce and child custody, it also brings up the question of which state has jurisdiction in a particular case.
This is where the Uniform Child Custody Jurisdiction and Enforcement Act comes into play. Not exclusive to military families, the UCCJEA often factors into their custody cases.
Related Reading: About Jurisdiction: Does Where You File for Divorce Matter?
What is the UCCJEA?
A complex set of regulations, the UCCJEA establishes rules regarding the child’s “home state,” thereby protecting their overall well-being.
Usually, the home state is where a child has lived for six months prior to legal action.
Deployments, as you probably know, are often much longer than this.
In the absence of one parent, it’s possible for the non-military parent to establish residency in another state. A possible safeguard is for parents to agree, prior to deployment, on what state constitutes the permanent home.
Relocation and Child Custody
Custodial parents must follow several rules to relocate. In everyday situations, you have to show how a move benefits the child, get permission from the court, and work out an arrangement with the noncustodial parent.
If you’re in the military, however, you don’t really have the choice to wait.
In most cases, the custodial parent is required to give advance notice to the other party—often 60 days, though this varies by state.
Some jurisdictions, however, have emergency provisions for situations where the parent couldn’t have known far in advance, such as deployment.
If you’re a military parent, it’s obvious to your benefit. On the other hand, for non-military, non-custodial parents, this causes problems.
What Is A Family Care Plan?
If the sole guardian is in the military and may be deployed, or if both parents are in the military and may be deployed at the same time, divorced or not, there needs to be a family care plan in place.
A family care plan lays out the childcare strategy for when service members deploy. This covers both short and long-term absences.
Depending on the branch of your military service, the specifics vary somewhat, but the basics remain the same. They deal with logistical concerns and day-to-day care. You must submit these plans to the military before shipping out.
Who Watches the Kid(s)?
The family care plan must include a civilian at least 21 years old to serve as a caregiver.
This must also include all relevant contact information and confirmation that this individual actually agreed to the task. Depending on the situation and length of deployment, you may name multiple caregivers for various circumstances.
Most often, this is a relative living close by to avoid completely upending the child’s life. If the child’s other parent is not named the caregiver in the case of deployment, the family care plan must include written consent.
How the Kids Will Get There?
Who Supports the Child Financially?
Not only must you choose a caregiver, but you must also provide this person with power of attorney, access to bank accounts, and the like.
This allows another individual to act on your behalf in financial matters in your absence. It’s important to not only know who is taking care of your kids but also how they will accomplish and afford this.
Who Gets Custody in the Event of Death?
Nobody wants to think about this one, but the possibility of death is a harsh reality of military service. You need a contingency plan in place, just in case.
If there is another parent, he or she almost always gets custody. If this person doesn’t have contact or visitation due to issues like abuse or neglect, another individual may be designated as guardian.
What Happens To Military Pensions In Divorce?
During a divorce, finances, especially military pensions, are a particular concern. Members of the military earn a pension as a retirement benefit, which can be one of the most significant, substantial resources to divide.
In 1982, the government passed the Uniformed Services Former Spouses Protection Act (USFSPA). This act allows state courts to treat military retirement pay as communal marital property.
There are two sides to this coin. What does it mean for the person who earned the pension, and what does it mean for the spouse?
If you are the military member
Under the USFSPA, as long as the court has jurisdiction over a divorce, the state, including California, has the authority to divide a service member's military retirement benefits.
The legislation allows for but does not require the division of military pensions.
The USFSPA does not guarantee your former spouse a portion of your military pension. It must be awarded as part of the division of property in the court’s final order.
That said, if you were married to your spouse for ten years or more, overlapping with ten years of service, your ex may be entitled to up to half of your retirement. The final amount is ultimately negotiable and subject to multiple considerations.
If the marriage was shorter than that, a spouse can ask for half. Even if the union has been in place for more than a decade, a service member can also request to pay less than 50%.
Under the USFSPA, there is no set-in-stone procedure to divide these benefits. Despite many who believe the contrary, there is also no minimum overlap between marriage and service that qualifies a military pension as community property that can subsequently be shared.
Your pension is an asset, and like most assets, it's negotiable.
If You Divorce A Military Member
If you are the spouse and want a portion of their military pension in an impending divorce, address this before signing the final orders, not after.
If you wait until the marriage is officially over, or if you fail to obtain the necessary court order, it may be impossible to divide the retirement benefits after the fact.
Even if retirement seems a long way off, you may want to bring up the topic of splitting the military pension ahead of time. As a spouse, you can’t collect on your ex’s benefits until the retiree actually applies for them.
If a divorce occurs while one of you is still an active-duty member of the military, before the pension kicks in, the division may be awarded as a hypothetical award.
The 10/10 Rule And Military Pensions
When dividing a military pension in a divorce, the 10/10 rule is a source of much confusion.
Many people take this to mean that the spouse of a service member is only eligible to receive a portion of the retirement benefits if the marriage lasted at least ten years and at least ten of those years were spent in creditable military service.
That, however, is not the case.
Instead of dealing with whether one spouse can collect a portion of the military pension, the 10/10 rule simply establishes where the payment originates.
If you were married for 10 years, 10 of those years counted toward your military retirement benefits, and that pension is later divided in a divorce, the payments will be delivered by the Defense Finance and Accounting Service.
Otherwise, the checks are issued directly by the retired service member.
Despite falling under the USFSPA, the rules and regulations still vary widely from state to state.
