MILITARY MEMBERS AND DIVORCE
Divorce is already a complicated process. When one of the spouses is an
active member of the military, however, the process slightly changes and
can become even more convoluted. It is important to have a firm grasp
on some of the potential issues in a military divorce.
The first step in any divorce is, of course, the initial filing of the
divorce papers. In cases that do not involve a military spouse, at least
one of the spouses must be a resident of New Jersey. These rules are slightly
different when a military member is involved. In those cases, either the
service member or the spouse to file in one of three places: 1) the state
where the spouse resides; 2) the state where the service member is stationed;
or 3) the state where the service member claims legal residency. New Jersey
allows the divorce to be filed where the service member is stationed even
in the event that neither the service member or the spouse are residents
of the state of New Jersey.
he timing of the filing and whether the divorce can go forward immediately
is also governed by a federal statute called the Service Members’
Civil Relief Act. This law provides protection to a member of the military
in certain types of civil law suits, including divorces. If a service
member’s military service would materially affect his or her ability
to defend a lawsuit, the court may stay the proceedings until the service
member is able to participate. For example, if a service member is deployed
out of the country and therefore is unable to respond to a divorce pleading
or appear to prevent a default judgment, a court may stay the divorce
until after the service member returns or is otherwise able to defend
the suit. This does not mean that the service member may forever prevent
the divorce, only that the divorce will be delayed for a time.
The military also has
when it comes to division of military pensions and continued receipt of
military benefits for the non-military member former spouse. In cases
where the marriage has been at least ten years, and those ten years overlapped
with ten years of the military member’s service, then the receiving
spouse may be entitled to receive their payment of the military member’s
pension directly from the government. Moreover, if the spouse’s
marriage was at least 20 years, and those 20 years overlapped 20 years
of military services, then the divorcing non-military spouse may be entitled
to continue to receive health care benefits or PX/BX privileges. Contrary
to a common misconception, military law does not require that military
spouses be married for at least ten years before being eligible to have
a military pension divided.
Clearly divorces involving a spouse in the military create special problems
and present unique issues.
who is experienced with these types of divorces. Contact us today at (732) 479-4711
to talk about strategy and your divorce.