Divorce & Deployment

The judge advocate officer (JAG officer), functioning as a general-practice legal assistance attorney in a deployed environment, handles many civil legal issues for servicemembers. However, the most common and difficult legal issues for the deployed judge advocate are in the area of family law.
Servicemembers (SMs) deployed in a combat zone often face various family law issues. Some units report that approximately 10 percent of first-time deployed soldiers and 33 percent of second-time deployed SMs experience separation or divorce. Captain John Paul Charles, House of Representatives, Statement to the 106th Congress at http://www.house.gov/hasc/testimony/106thcongress/99-03-08charles.htm (providing answers to challenges faced by soldiers on deployment). [Note: Link goes to statement archived at another site.)

Family care plan

In the Army, one of the first things soldiers must arrange before deployment is for the welfare of their families. The Army requires soldiers who are single parents or who have a spouse in the military to complete a “family care plan” that will provide for children during the soldier’s deployment. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy 5-5 (13 May 2002) [hereinafter AR 600-20]. This family care plan provides proof to the Army that the solider has made financial provisions for dependents, that the soldier has thoroughly briefed guardians on their responsibilities, and that guardians can access all military benefits available to the dependent. If the soldier does not complete this family care plan or it becomes invalid, the soldier may become nondeployable and could face disciplinary action.

This family care plan becomes an issue when divorce or separation leaves the deployed soldier a single parent. The soldier may seek emergency leave to file all necessary petitions with the court to resolve the custody and support dilemma. Also the soldier may be eligible for emergency leave for a failed family care plan in the commander’s discretion. U.S. Dep’t of Army, Reg. 600-8-10, Leaves and Passes. 6-1 (31 July 2003) [hereinafter AR 600-8-10]. Or, in extreme situations rising to the level of hardship, the soldier may request a discharge. U.S. Dep’t of Army, Reg. 635-200, Active Duty Enlisted Administrative Separations 6-4 (15 July 2004).

Supporting and caring for the family in times of deployment is a high priority. It is so important that the Department of Defense has issued an instruction directing each of the services to establish family care regulations. U.S. Dep’t of Defense, Inst. 1342.19, Family Care Plans (13 July 1992).

To assist the soldier in providing for his or her family, the military pays the soldier a basic allowance for housing (BAH) at the “with dependents” rate, a higher amount than for a single soldier. The soldier completes DA Form 5960, “Authorization for Allowance,” and then submits proof that the individual is a dependent. This proof may be a divorce decree, a marriage certificate, a birth certificate, some other court order, or the soldier’s sworn statement.

Guardianship

As part of a family care plan, single parents or families with both spouses on active duty must resolve guardianship of the children. AR 600-20, supra note 3 at 5-5. The servicemember generally has a JAG officer draft a special power of attorney for temporary guardianship, thereby granting another family member or qualified person guardianship of the child or children. Although this is not legal guardianship, the military accepts this document to facilitate medical treatment of the child on base and to satisfy other requirements in obtaining military benefits for the child. However, Army Form DA 5841-R, “Power of Attorney” warns the soldier that this instrument may not be effective for all purposes and that he or she should seek legal advice.

The SM as guardian or legal custodian may qualify for BAH with dependents even if the documentary evidence is a special power of attorney. The Defense Finance and Accounting Service (DFAS) will ordinarily accept this special power of attorney granting temporary guardianship as proof to initiate the payment of BAH “with dependents.” Of course, a judge advocate will usually recommend that the soldier have a temporary guardianship by court appointment if at all possible.

Paternity and child support

Other deployed soldiers face issues such as the establishment of paternity, the responsibility for child support, the ongoing obligation to pay child support, and the military regulations that affect these family law issues. Let’s take these one at a time.

First, if a paternity dispute is pending, the soldier may want to proceed with the case and request a genetic test. By accepting service of process, the soldier can either confirm or refute paternity and initiate support without having to wait. However, the soldier also may request a stay of the proceedings until he or she returns from deployment. Typically, the Army does not involve itself in paternity disputes, so obtaining a genetic test from an unwilling deployed soldier may be nearly impossible. U.S. Dep’t of Army, Reg. 608-99, Family Support, Child Custody, Paternity. 2-2 (1 Nov. 1994) [hereinafter AR 608-99]. The other services have a similar “hands-off” approach to disputed paternity matters.

Likewise, the deployed soldier may be difficult to locate, contact, and serve, and the traditional tools may not be effective. Generally, a soldier may check Army e-mail regularly, but not all soldiers have easy access to a computer. It is usually difficult to effect service of process on Sms who are in remote locations. Once the custodial spouse establishes paternity, a legal assistance attorney may help in obtaining support. Id. at 1-7. Either by virtue of a conformed birth certificate, the birth of a child during a marriage, or a legal determination by a competent court or other state authority, the soldier may have a duty to provide support for the child under the family support regulation, AR 608-99, unless the command relieves the soldier of this obligation. Id. at 3-5(f). AR 608-99 applies to the Army Reserve, National Guard, and active duty when deployed. A soldier may be punished for disobedience. Id. at i.

A common misconception is that the Army expects soldiers to provide support, in the absence of an agreement or order, in the amount of the Basic Allowance for Housing that they receive. In general, AR 608-99 requires support from soldiers in the amount of the BAH-II, with dependents, that they would be entitled to receive, whether or not they receive it. For a table showing the BAH-II rates, go to www.dod.mil/dfas, then “Military Pay.”

Under AR 608-99, a soldier need not be receiving BAH as a prerequisite to his or her duty to provide interim support to family members. A servicemember who is living in government quarters, for example, receives only a reduced amount of BAH if he is not married and has legal responsibility for a dependent child. If a SM has no adjudicated or acknowledged obligation for support of a child born outside of marriage and is living in the barracks, then he or she receives no BAH; the on-base quarters are provided in lieu of a housing allowance. BAH II is a measure of the SM’s support obligation, rather than a necessary component of the SM’s pay and housing allowances.

Also note that the amount of BAH II is not a ceiling on the SM’s support obligation. The BAH II is only a minimum amount of support pursuant to interim support requirements in the absence of an agreement or order. The responsible SM–parent may pay more than this involuntarily (pursuant to an order) or by agreement. See Military.Com, Basic Allowance for Housing Type II at www.military.com/benefits/military-pay/basic-allowance-for-housing-rates providing a chart to determine the amount of support a soldier owes under AR 608-99.

The judge advocate officer can help all Sms and their family members and must be familiar with their various regulations. Unlike in the Army, in the Air Force the commander determines support, based on the circumstances, in the absence of a written agreement or court order. U.S. Dep’t of Air Force, Inst. 36-2906, Personal Financial Responsibility (1 January 1998). No set amount of support is required, and nonsupport is seen as a matter for the civil courts.

The Navy provides a specific scale when no court order or written agreement exists. The Naval Personnel Manual (§ 1754-030) provides the following guidance to commanders for determining adequate support:

  • Spouse receives one-third of gross pay.
  • Spouse and one minor receives one-half of gross pay.
  • Spouse and two or more minors receive three-fifths of gross pay.
  • One minor receives one-sixth of gross pay.
  • Two minors receive one-fourth of gross pay.
  • Three minors receive one-third of gross pay.

The Navy defines gross pay as including base pay and BAH, but does not include hazardous duty pay, sea or foreign-duty pay, incentive pay, subsistence allowance, or any other miscellaneous benefit afforded sailors deployed in a combat zone. Military Divorce and Separation, Child/Spouse Support and Garnishment Issues, at usmilitary.about.com/od/divfinance/a/divorcesupport.htm (describing the military rules and regulations regarding support).

In contrast, some agencies count all military benefits in their application of the service guidelines, including tax-free benefits and the value of free meals obtained in a combat zone. See “Essentials for Attorneys” in Child Support Enforcement Handbook, Dep’t of Health and Human Services Administration for Children and Families Office of Child Support Enforcement 9 (3d ed. Aug. 2002) [hereinafter Child Support Enforcement Handbook].

Often the judge advocate will encourage the soldier to consider the best interest of the child, try to put aside any animosity toward the other parent, and consider using this other income to assist the child. Some clients heed this advice, but others insist on litigation.

Problems with income calculation also occur when a SM receives notice of a support modification hearing after deployment. The SM may request a stay of proceedings through the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. App. 501 et seq., to allow adequate time to prepare a response and get ready for trial.

If the court grants a stay, the SM at the time of the hearing will no longer make the extra income that service in a combat zone brings; all compensation received in a combat zone is tax-free. The child support order, based on a multiplier, such as 20 percent of gross income, is particularly troubling for the SM when it automatically adjusts due to higher combat-related income.

Many of these cases involve various state child support enforcement offices, which will assist parties with paternity, child support, and medical support establishment, modifications of support, and enforcement of child support orders. The judge advocate often will assist the SM in negotiating with the child support enforcement agency.

Some SMs find themselves facing either administrative or judicial actions to enforce the nonpayment of child support. If a soldier is not paying child support, either under the terms of a court order under a separation agreement or under AR 608-99, this violation could result in a Uniform Code of Military Justice (UCMJ) violation, resulting in a court-martial, nonjudicial punishment, a letter of reprimand, or some other type of punishment. AR 608-99, supra note 9 at 1-6.

Arguably the SCRA may protect the SM from civil administrative actions such as license suspension, tax refund interception, financial institution data match, or credit bureau reporting, or from a judicial action such as a civil contempt proceeding. 50 U.S.C. App. § 522.

However, the SCRA does not protect a SM from either state or federal criminal prosecution for the nonpayment of support.

The Army presumes that the soldier is in compliance with AR 608-99, unless the guardian or custodial spouse objects to nonpayment. AR 608-99, supra note 9 at 2-7. This objection can come in the form of an inspector general complaint, a congressional inquiry, or any form of communication to the soldier’s commander. The Army takes these notices seriously and requires the company commander to personally review each one. AR 608-99, supra note 9 at 3-1. The soldier will need to prove ongoing payment, such as by producing bank statements or copies of his or her Leave and Earning Statements (LES) to show that payments have begun.

The most common way of satisfying a child support debt is through a child support withholding order. This order is normally sent to DFAS by the child support enforcement agency or a private attorney. The address is:

Garnishment Operations Directorate
Code L-last 4 digits of member’s SSN
DFAS
Cleveland Center
P.O. Box 998002
Cleveland, OH 44199-8002

DFAS also will accept these order/notices faxed to the following commercial fax numbers indicated by the last 4 digits of the member’s Social Security number. Note: You will not receive a return receipt if you fax the order. Last 4 digits:

0000 to 1249: (216) 522-6819
1250 to 2499, (216) 522-6951
2500 to 3749, (216) 522-6821
3750 to 5000: (216) 522-5372
5001 to 6250, (216) 522-5371
6251 to 7500: (216) 522-6817
7501 to 8750: (216) 522-5958
8751 to 9999: (216) 522-6819.
Id. at 3.

Once the withholding order is in place, the SM and the custodial parent should be able to rely on this instrument to withhold child support and any arrearage from military pay. If a withholding order has not been sent to DFAS or has not been established, the Army encourages the active-duty soldier to establish a voluntary allotment to satisfy the obligation of AR 608-99. Another option is a direct withdrawal from the soldier’s bank account to the child support agency or the other spouse’s bank account.

When the client comes in with questions about child support law in the various states, the judge advocate may use Web sites such as ocse 3.acf.hhs.gov/ext/irg/sps/selectastate.cfm to look up the basic rules and procedures of child support establishment, enforcement, modification, and termination.

Separation agreement

Many soldiers find themselves facing marital difficulties while deployed. Some choose to enter into separation agreements with their spouses. The legal assistance office will help either spouse with this separation agreement. If the soldier does not complete the agreement prior to deployment, he or she can sign it, scan it, and send it electronically or use regular ground mail. Any agreements made by the soldier and spouse as to alimony and child support override AR 608-99 and become the amount of support the soldier must provide to the other party. Although an agreement may be oral, this is always inadvisable.

Under AR 608-99, if the agreement is oral and both parties agree, the soldier must comply with this agreement. However, if the parties disagree, the Army will not hold the soldier to this agreement. If the soldier has a written agreement, either as a separation or property settlement agreement or a letter or series of letters evidencing an agreement, the soldier may be bound by this agreement as well. AR 608-99, supra note 9 at 2-1.

What if the soldier sent an e-mail or made the agreement conditional? In tough cases like these, the legal assistance attorney may assist the soldier, and the staff judge advocate will advise the command in deciding if the writing is an agreement and if it should bind the soldier.

The requirements of AR 608-99 can be harsh if the soldier’s spouse has already spent great sums of their money or is not deserving of the support. If there is no separation agreement or court order, the soldier can ask the battalion commander to give credit or waive spousal support under this regulation if the other spouse makes more money, abused the soldier, or is in jail. AR 608-99, supra note 9 at 2-12.

Even if these conditions cannot be met, the soldier can ask the special court-martial convening authority, on the basis of “fundamental fairness,” to forgive or give credit for spousal support required under this regulation. The soldier must prove by a preponderance of the evidence that the spouse is not deserving of this support, either due to spending large amounts of the soldier’s money or some other form of misconduct, such as abuse or adultery.

The agreement should provide for the anticipated change of income when the soldier returns to his or her regular job. About two-thirds make more money in a civilian job than as a member of the Reserves or National Guard, and one-third make less money. JAG officers usually encourage the soldier to agree with the spouse about the amount of spousal or child support to be paid after the deployment is finished or to enter into an agreement or go to court before deployment, to avoid wasted time and additional legal fees.

Divorce action

Due to the difficulties created by long deployments, many SMs face potential divorce actions. If the SM does not want the divorce, he or she may request a stay under the SCRA, 50 U.S.C. App. § 522 (2005). However, if both parties want the divorce, then a judge advocate officer may advise the SM to seek civilian legal counsel to handle the divorce. If the parties cannot agree on any of the issues that normally arise in a divorce proceeding, such as support, property distribution, or custody, the judge advocate will usually stress even more strongly the importance of seeking help from civilian legal counsel.

If both parties agree on the substantive issues, the state provides for an expedited pro se divorce, and the SM does not want to hire an attorney, the legal assistance attorney generally advises the client to contact the appropriate court, file for the divorce, and ask whether a simple joint uncontested divorce kit or forms packet is available. If this procedure is not available, referral to private counsel or a divorce clinic may be necessary.

The legal assistance attorney also advises the SM about various military benefits and whether the spouse is eligible for them. For example, the SM should carefully consider retirement benefits and whether the spouse is eligible for these.

Servicemembers often face custody and visitation disputes, especially in light of the increasingly high number of female soldiers deployed. These soldiers usually try to stay the custody proceedings under SCRA, absent any abuse or neglect, and begin gathering evidence to be used in a custody battle based on factors the judge must consider. The soldier is at a disadvantage in a custody suit brought before the court either during or after deployment, because the other parent has often gained an advantage by being the custodial parent during the deployment. A soldier returning home on leave should be careful not to abduct, take, entice, withhold, detain, conceal, or carry the child away from any lawful custodian with greater custodial rights because these actions may be in violation of AR 608-99. AR 608-99, supra note 9 at 2-11.

The legal assistance attorney often consults available resources such as www.divorcesource.com/info/infocenter/infocenter.shtml, to brief the client on the basics of family law in that particular state. Because the SM may be serving in a state other than the state of legal residence, it is best to promptly gather evidence of the client’s legal residency, which is a major factor for divorce, military pension division, and support cases. However, the judge advocate officer merely advises on these matters and in most instances cannot make an appearance in court.

Powers of attorney

One serious problem that arises with SMs who are facing marital discord is created by general powers of attorney. When the SM deploys, a general power of attorney often is granted to the spouse, which creates a potential problem if either spouse is considering a divorce or separation. To remedy this, the SM should revoke the general power of attorney with a revocation instrument, sending it to the spouse by certified mail and to every person or entity that might be affected by the revocation. If possible, the SM also should destroy the original document. If the financial need is extreme, the commander has the discretion to grant a soldier emergency leave, depending on the soldier’s mission, unique circumstances and other factors. AR 600-8-10, supra note 4 at 6-1. Most JAG officers recommend special powers of attorney with durational limits to restrict the financial power given to the other spouse.

The SCRA may entitle the soldier to protection and effectively postpone a child support, custody, or divorce action unless its protections are waived or the stay is not granted by the court. When the SM has notice of the proceedings, the Act predicates a stay upon two communications. One is a statement, usually from the SM, that shows how military duties prevent his or her appearance and participation in court or agency proceedings, giving a date when the SM will be available. The other is a statement from the commander that the SM’s duties prevent appearance and that leave is not authorized. 50 U.S.C. App. § 522. The judge advocate is not a commander and should not respond to this court action under the SCRA.

Although the full range of estate-related issues is beyond the scope of this article, a SM generally modifies his or her will after the divorce, excluding the former spouse, and makes changes in the Servicemembers’ Group Life Insurance (SGLI) so that the spouse is no longer a beneficiary. If the SM wants to leave money to minor children, the will can contain a trust to disburse the estate and life insurance proceeds, and the soldier can add special language to the SGLI beneficiary form to ensure that proceeds go into the trust. AR 27-3, supra note 2 at C-1.

The best guide to military estate issues is Flood, “Estate Planning for the Military,” and the Flood and Grasselli, “Survivor Benefits for Recalled Reservists,” found at www.abanet.org/genpractice/legalface.

Conclusion

Many deployed SMs encounter a wide range of family law issues. JAG officers, assisting SMs in a combat zone, try to resolve these issues so that the servicemember can return to his or her important mission while deployed. FA

Darrell Baughn,1LT, is a member of the Judge Advocate General’s Corps, U.S. Army Reserve.

Published in Family Advocate, Volume 28, No. 2, Fall 2005. © 2005 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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