Many husbands and fathers are members of the U.S. Armed Forces. Having a family as a military servicemember is very difficult because the demanding nature of military life puts unique pressures on families, such as frequent traveling, the risk of losing a parent, and the strict and rigid aspects of military culture.
When it comes to the legal implications of divorce for soldiers and officers in the military, men have to deal with issues involving domicile and jurisdiction for matters concerning the Servicemembers Civil Relief Act, child custody and parenting time, family support, and dividing military benefits.
Generally, jurisdiction for divorce cases extends only as far as to state borders. A court that does not have jurisdiction over the parties and specific property does not have the power to issue orders dissolving their marriage or dividing their property. The parties’ domicile, that is, their legal state of residence, is one of the bases for establishing jurisdiction for courts in a divorce case. However, domicile is a complex issue for our brothers and sisters in arms, given the transient nature of military service.
The Servicemembers Civil Relief Act
Federal law recognizes the difficulties of military service when it comes to state court jurisdiction and grants special protections to them under the Servicemembers Civil Relief Act, 50 USC § 3901, et seq. For example, servicemembers can retain their domicile in a certain state for voting and tax purposes. Their domicile will not change by moving from or to a particular jurisdiction due to military orders. So if Michigan is your legal state of residence per this law, a divorce proceeding would occur here even if you and/or your family resides in another state where you are stationed.
Determining Jurisdiction for Custody
Under the Servicemembers Civil Relief Act, “no court may consider the absence of the servicemember because of deployment, or the possibility of deployment, as the sole factor in determining the best interest of the child.” However, this provision does not stop courts from considering the impact of deployment and the possibility of deployment in conjunction with other factors. In fact, Michigan law lists numerous factors that the court must consider to determine the best interests of the child when undertaking custody determinations.
Each branch of the military has regulations related to providing support for family members that are specifically applied to that branch. Soldiers and officers receive an allowance for food and housing across all branches. This is known as Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS). The rate for BAH and BAS depends on how many dependents the servicemember has. However, each branch has different rules regarding BAH and BAS.
Upon divorce, a member’s family may be entitled to amounts that constitute BAH and BAS to fulfill spousal and child support obligations. However, each branch also has rules involving the family support obligations of its servicemembers and what happens in the event of nonsupport.
Here is a sample of some of the family support regulations for the different branches of the military:
- Army: Members must pay support whether or not they receive BAH or BAS. Refusal to pay can result in a court-martial.
- Navy: A unit commander can determine adequate spousal or child support based on Navy-specific guidelines based on a percentage of the member’s pay.
- Marine Corps: Marines are obligated to pay family support in accordance with the Marines Corps Support table. Support obligations may not exceed one-third of the Marine’s monthly pay.
- Air Force: Issues involving nonsupport are determined using civilian courts. However, when an Air Force member fails to pay support, their BAH may be terminated.
- Coast Guard: Coast Guard members may be found unfit upon a finding that they have exhibited a pattern of nonsupport.
Division of Military Benefits
Dividing military benefits depends on the nature of the benefit. Some benefits, such as disability pay are designed to compensate the servicemember for strictly personal losses. Such benefits generally are not divisible upon divorce. However, these benefits could be considered income to the veteran for purposes of calculating child or spousal support. Other benefits, such as certain components of military retired pay, act more like a pension and are divisible upon divorce. The procedures for dividing military retirement benefits is complex and therefore it is crucial that a servicemember consult experienced counsel.
American Divorce Association for Men Can Help
If you are looking for an experienced legal advocate to represent you and your family’s interest, you should call the American Divorce Association for Men (ADAM). Whether you are a military service member or are married to one, ADAM is here to make sure you and your family’s rights are given the proper respect and recognition during divorce matters. As a show of gratitude and respect, ADAM offers a 10% discount for both active military and veterans.Call us at (248) 327-0050 or contact us online today for a consultation.