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, or

o 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.13


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.41


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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Email us: [email protected]

Or

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