GPSolo Magazine - January February 2005
Military Family Law
Thirteen Common Questions
Working with military divorce cases can be a daunting task. There are unique rules that must be followed about dividing a military pension, serving papers on the servicemember, enforcing support, and getting a divorce. The questions below address the basic issues that arise in this area.
1. How can I serve a summons and petition for divorce on my client’s husband, Major Jake Brown?
Go to the rules for service of process on military bases and ships in U.S. waters set out in 32 C.F.R. § 516 (for the Army) or 32 C.F.R. § 720.20 (for the Navy and Marine Corps). You should also review the civil procedure rules in your jurisdiction. Often the easiest method is service by certified mail, return receipt requested.
If you use an off-base residence address for Major Brown, then use whatever method of serving him you would use in any other case. If you use his military address (e.g., MAJ Jake Brown, SSN 111-22-3333, 3rd Combat Support Battalion, Ft. Bragg, NC 28307), you can use the sheriff or a process server. In such cases, military officials make the servicemember available for service of process, assuming he is actually at the base (as opposed to being away on a field exercise).
Please remember that military officials cannot serve process on base, but upon reasonable request they often allow the servicemember to accept service voluntarily. If the above two methods of service don’t work, then you may send your documents to the unit commander and request that they be given to the servicemember with an acceptance of service form. Ordinarily the servicemember will be given the chance to talk to a legal assistance attorney before deciding whether to accept service. To prevent the use of delaying tactics, mention in your cover letter to the commander the possible adverse effects of delays (e.g., continued arrears, increased legal fees for both sides, court-awarded attorney fees for unnecessary delay, a retroactive support order, and the resulting arrearage when a support is finally issued).
2. What if Major Brown is stationed overseas? How do I serve him?
First of all, note that you can sometimes serve the defendant, Major Brown, by registered or certified U.S. mail if the host nation (where he is stationed) doesn’t object. You’ll be using APO and FPO addresses, which belong to the U.S. military. If the military postal clerk doesn’t send the return receipt back or obtains the wrong signature, try the following: First, prepare a duplicate set of the documents to be served and place them in an envelope addressed to the servicemember (return receipt affixed and postage paid). Then place this packet inside a larger envelope and address it to the military postal officer for the APO or FPO where the member is located (e.g., Officer-in-Charge, Military Post Office, APO New York 01234). Include a note explaining your unsuccessful attempts to get a return receipt and asking that proper postal procedures be followed to deliver the enclosed documents and to send you the properly executed receipt. For more information on how to serve overseas registered and return receipt requested mail, consult the Postal Service manual on international postage rates and fees.
You must comply with the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents (available at www.hcch.net/e/conventions/menu14e.html) if the place of duty is a signatory to the Convention. Some countries, such as Japan, have no objection to service by certified or registered mail; others, such as Germany, demand that you serve the documents through a specific government office and translate the documents into the host nation’s language (even though you are serving an American servicemember). See Annot., Beverly L. Jacklin, “Service of Process by Mail in International Civil Action as Permissible under Hague Convention,” 112 A.L.R. Fed. 241 (2004). A local high school or college may be able to help you with translating court documents. For information on nonsignatory nations, consult the U.S. State Department’s Office of Citizens’ Consular Services, 202/647-3675, or go to the State Department’s website, www.state.gov. Be forewarned that you may be in for a long wait in Hague Convention signatory nations such as Germany; sometimes it may take several months to serve the papers on the individual.
3. The trial is coming up. How can I get Major Brown back to the United States for the hearing?
First of all, find out how much leave he has available. Each servicemember gets 30 days of annual paid leave. Use discovery to get a copy of his pay statement, known as the Leave and Earnings Statement (LES). It will show how much leave he has used and how much is still available. Major Brown receives an LES twice a month, and he can produce a duplicate by logging on to www.dfas.mil, the website for the Defense Finance and Accounting Service (DFAS) with his password and user ID.
If the lawsuit involves paternity or nonsupport, military regulations may help you out by encouraging the granting of leave when a servicemember needs to attend a court proceeding. Department of Defense (DoD) Directive 1327.5 states that leave requested for paternity or child support hearings must be granted unless the servicemember is involved in a “contingency operation” or the exigencies of military service require a denial of such request.
When you represent a distant servicemember and you need the case heard promptly, ask the court for a peremptory setting. If you obtain this, you can assure Major Brown that his case will be heard and resolved before he has to return to his distant duty station, rather than costing him a wasted airline ticket because the case wasn’t reached.
4. What about legal residence and divorce? Major Brown claims he’s not domiciled here.
Domicile is an essential element in a divorce case. One of the parties to the divorce must call your state “home” for legal residence purposes (such as paying state taxes and voting there) for the divorce to be valid. The Servicemembers Civil Relief Act (SCRA), 50 U.S.C. App. 501 et seq., allows servicemembers to retain their original domicile (the one they had when they entered military service) for state income tax and voting purposes, regardless of where they are stationed. Because of the importance of domicile for a divorce, you will need to decide which domicile—Mrs. Brown’s or her husband’s—is appropriate for the divorce filing. If he files first in another jurisdiction, be sure to hire competent counsel there. Look closely to see if that other state really is his domicile—it may just be a convenient place for him to get a divorce, or it may be a place where Mrs. Brown’s pension division rights are not protected under state or federal law (see the article “An Attorney’s Guide to Veterans’ Rights and Benenfits” on page 56 of this issue).
5. What military entitlements will my client, Mrs. Brown, lose upon divorce?
Mrs. Brown will lose all military entitlements in most cases (ID card, base housing, access to the commissary and post exchange, medical care at on-base facilities, and medical insurance coverage, called TRICARE). The date of the divorce affects direct payment of military pension division; DFAS will not garnish retired pay unless there is ten years of marriage concurrent with ten years of creditable military service. For a spouse to have full medical care as well as exchange and commissary privileges, she must have 20 years of marriage concurrent with 20 years of military service.
For a helpful table comparing years of marriage and military service with benefits for the nonmilitary spouse, go to www.jagcnet.army.mil/tjaglcs, click on “TJAGLCS Publications,” go to “Legal Assistance,” select JA 274, “Uniformed Services Former Spouses’ Protection Act,” and go to Appendix A, “Table of Benefits Eligibility.”
6. My client, Jack Jones, has custody of the children, and his ex-wife is in the Army. How much child support should he receive?
Army Regulation 608-99, 32 C.F.R. § 584, requires a soldier to provide support for family members. In the absence of an order or agreement, it establishes interim support guidelines, defined in terms of a soldier’s Basic Allowance for Housing (BAH), a nontaxable housing allowance paid to all military personnel not living in government quarters or who are separated from their family members. The amount of BAH depends on geographic location, the servicemember’s rank, and whether or not she has dependents. There is no additional amount if there is more than one dependent.
The point of initial enforcement for support is the unit commander. The Army cannot just take money from a soldier’s paycheck and send it to your client. Regulations do, however, establish a duty to pay support, and the Army can punish a soldier who fails to comply with this requirement. And DFAS will honor any valid garnishment order. Your best bet for getting support is to use AR 608-99 as a temporary measure pending a hearing, and to get a court order at your earliest opportunity.
To read the best summary of all military support regulations, go to www.jagcnet.army.mil/tjaglcs, click on “TJAGLCS Publications,” go to “Legal Assistance,” select “54th Legal Assistance Course Deskbook, Main Volume,” and click on “DOD Family Support.”
7. What about paternity?
The Defense Department considers paternity to be a civil matter for the courts to decide. Commanders will not become involved in disputed cases, other than to refer the servicemember (or the nonsupport complainant) to the civil courts.
8. Child support depends on the pay of both parents. What should I know about military pay?
Military compensation consists of basic pay and possibly BAH (see above), Basic Allowance for Subsistence (BAS), Variable Housing Allowance (VHA), special skill pay (e.g., flight pay for pilots or jump pay for paratroopers), and bonuses (e.g., reenlistment bonuses). There is no set “military allotment” for family support. In general, all pay and allowances may be considered in setting the support obligation. Most states do not exclude a source of income solely because it is nontaxable.
9. How can I determine how much Major Brown is earning?
A copy of his LES will show all pay and entitlements. Carefully review his allotments; they can be used for elective deductions (e.g., a car payment or an automatic savings plan). Also pay close attention to:
• How much leave he has accrued, in case he requests a stay of proceedings under the SCRA (for more, see the article “SCRA: For Those Who Go in Harm’s Way” on page 20 of this issue).
• What state he claims as domicile for tax-withholding purposes; this may help establish divorce jurisdiction.
• How many dependents he claims for income tax purposes.
The best websites that explain how to read and understand the various fields and entries in the LES are www.lifelines.navy.mil (use Search to locate the article “Understanding Your LES” by Megan Sather); and www.dfas.mil/money/milpay/les_djms.pdf (containing an eight-page LES explanation published in June 2002 by DFAS).
10. What are the options for medical expenses?
Military dependents are entitled to medical treatment at military hospitals and have military medical insurance through TRICARE, which covers a portion of allowable medical expenses. Children and spouses need to be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS). If the family is intact, the military member (known as the “sponsor”) initiates the enrollment by filling out DD Form 1172. When the family is separated, the custodial parent can start the process by mail and then go to a military base to sign the final documents; the branch of service of the enrollment site doesn’t have to match the branch of service of the military parent. With a child over ten years old, a military dependent ID card will be issued. Contact the nearest military installation for more details. To get answers on DEERS enrollment eligibility or on locations where a family member can enroll in DEERS, call 800/538-9552.
Once a child is enrolled in DEERS, he or she is eligible to receive medical care in two ways:
• TRICARE can be used with civilian health care providers; or
• Medical care and medications may be obtained from military hospitals and clinics at no charge; the base for treatment need not be the same as the sponsor’s branch of service.
TRICARE is a cost-sharing program, just like any other private medical insurance program. There is an annual deductible amount, and co-payments are required. Clients who are using TRICARE should get a copy of the handbook explaining coverage by writing to TRICARE, Public Affairs Branch, Aurora, CO 80045-6900, or by calling 303/361-1000 or 303/361-1129. Information is also available from the TRICARE website, www.tricare.osd.mil.
A child born outside marriage is also entitled to military medical care and TRICARE if:
• The child is acknowledged and supported by the servicemember; or
• There is a judicial decree of paternity.
A military ID card is issued to prove eligibility. If the servicemember will not cooperate in getting a card for the child, his or her commander can coordinate issuance of the card.
11. What about custody—can a servicemember actually win custody of minor children, or is that little more than a fond hope?
Some people claim that there’s a bias against military parents in custody cases. As with everything else in the area of custody litigation, the real answer to this question is “It depends.” If your client, Major Brown, is assigned to a unit that frequently deploys overseas, has irregular training schedules that often involve weeks spent “in the field,” or has other limitations that would impact on his ability to care for a child, then he’s unlikely to get custody.
On the other hand, military duty can be turned into a real advantage if the issues of scheduling and deployments can be addressed. The quality of schools on base is generally good, and they are run by a federal agency, the Department of Defense Education Activity. Most military installations have excellent recreational facilities and an active “dependent youth activities” program. There are usually day-care facilities for those with normal duty hours (and sometimes for those with unusual hours, as well). And finally, the opportunity to travel to other states and countries provides a chance for learning and enrichment that most children just don’t have. So it’s really possible to make a great argument for military custody, so long as your client is able and willing to provide for the children and make the sacrifices that custody involves.
12. How should we structure visitation in a military case?
Be sure to plan for long distances, even if the parties are both “local” at the start of the case. Many military personnel find themselves reassigned in a PCS (permanent change-of-station) move after three to five years at one installation. Your client’s spouse could be traveling to Germany or Korea in the next move, so keep that in mind.
When drafting a visitation schedule for the children, set out a local schedule and a long-distance one. The local one can be “every other weekend, Friday to Sunday” or whatever your local practice suggests. The long distance one, on the other hand, should provide in the appropriate case for visitation of several weeks in the summer and for a week or two during the winter holidays. It also needs to specify who pays for airline tickets, how they are provided to the custodial parent, and how a child who cannot travel alone will be transported to the non-custodial parent’s residence for the visitation.
When a servicemember is deployed and unable to arrange visitation, he may want to ask the court to allow a “stand-in” for him, such as a stepparent, during visitation. A recent Illinois case gives support to this argument; in In re Marriage of Sullivan, 342 Ill. App. 3d 560, 795 N.E.2d 392 (2003), the court stated that it was within the trial court’s discretion to allow the servicemember’s son to visit with his family while the servicemember was deployed on active duty, essentially delegating visitation rights. See also McQuinn v. McQuinn, 2003 Ala. Civ. App. LEXIS 362.
13. How can I get a servicemember to bring back a child that he’s keeping overseas?
When there is a court order to return the child, use DoD Directive 5525.9. It requires servicemembers, DoD employees, and family members outside the United States to comply with court custody or visitation orders requiring the return of minor children.
Mark E. Sullivan is a retired Army Reserve JAG colonel. He practices with Sullivan & Grace, P.A., in Raleigh, North Carolina, and is a board-certified specialist in family law. He is the Chair of the Military Committee of the ABA Family Law Section, a former chair of the ABA Standing Committee on Legal Assistance for Military Personnel (LAMP), and a member of the ABA Working Group on Protecting the Rights of Servicemembers. He can be reached at Law8507@aol.com.