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 Child Custody During Divorce
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 After Military Divorce
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.
If you are a parent who is involved in a child custody dispute, should you be concerned if you are serving in the armed forces? Can serving your country hurt you in a custody battle? A metro Detroit child custody attorney can answer all of your questions and address your concerns.
Are Parents in the Military Treated Differently by the Courts?
Under state and federal law, in child custody proceedings, a parent who is serving in the military cannot be treated any differently by the courts than a parent who is a civilian.
When hearing child custody cases that involve military parents, the courts are supposed to consider the same factors that are considered in cases exclusively involving civilians. At least theoretically, your military service should have no effect at all on your child custody dispute.
It is always best if parents can work together and agree about custody and parenting after a divorce. Acrimony and hostility create unnecessary legal costs, take a great deal of your time, and cannot be helpful to the child or children. Compromise with your ex wherever you can.
Still, the idea that your ex might use your deployment to start a child custody battle can quite understandably create anxiety. If you are concerned, schedule a consultation with a family law attorney who can look at the details of your situation and explain your legal rights and options.
What is a Military Family Care Plan?
Military parents are required to create a Military Family Care Plan for the care of minor children during the deployment of one or both parents. It should include medical information, emergency contacts, and the location of documents like wills, insurance policies, and powers of attorney.
However, a Military Family Care Plan document may not have any influence on a child custody proceeding in Michigan (or in any other state).
Some parents in the military may be concerned that, because they face the possibility of relocation or deployment on short notice, a judge may decide that the child or children need a more stable environment, and the child’s other parent may be awarded custody on that basis.
What Is the Highest Priority of a Family Court?
This concern is not unwarranted. In Michigan and every other state, in any family court proceeding that involves a child, the court’s top priority is ensuring the well-being and best long-term interests of the child, and military deployments can certainly disrupt a child’s life.
Until a Michigan family law attorney reviews the details of your own situation and provides you with personalized legal advice, there is simply no way to predict what might happen in any particular child custody dispute that involves a parent who is serving in the military.
Can Your Ex Modify the Custody Agreement While You’re Deployed?
You do not have to worry about your ex-spouse taking advantage of a deployment to have your child custody arrangement permanently changed. The Servicemembers Civil Relief Act (SCRA) creates an automatic stay (or freeze) on any civil legal proceedings that involve a military parent.
Under the SCRA, if your ex files for custody while you are deployed, the case is put on hold, usually for ninety days. You will be notified, and a judge may even decide to extend the stay until your deployment is over. Michigan law gives military parents even more protection.
The Michigan Child Custody Act (MCAA) prohibits a Michigan court from hearing a motion to change custody while one parent is deployed. The MCAA, however, does let a Michigan court take immediate, temporary action to ensure that a child’s environment is safe, stable, and secure.
How Comprehensive is SCRA and MCAA Protection?
Under the MCAA, a Michigan court may issue a temporary child custody order if the non-deployed or non-military parent can demonstrate to the court that a temporary child custody order is in the best interests of the child.
The MCAA also requires the court to restore the original child custody arrangement upon the deployed parent’s return from his or her deployment. Both the SCRA and the MCAA legally ensure that parents are not disadvantaged as the result of their service to our nation.
However, the SCRA and MCAA protections are not absolute. Your children’s best interests will always be a court’s top priority, so if your ex can show that there is a compelling reason to change the custody agreement, it could conceivably happen, even while you are deployed.
If you’re a divorced parent in the military with custody of your child, and you have an upcoming deployment, a Michigan child custody attorney can file a court motion so that another adult family member (a grandparent, for instance) has custodial responsibility while you are deployed.
What Jurisdiction Decides Military-Related Child Custody Cases?
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) sets forth the rules regarding jurisdictional authority for all child custody cases, including cases that involve military parents and their children.
The UCCJEA is a complicated statute, and it can be hard on a parent who is deployed overseas. If you are away for more than six months, your ex could establish residency in a state where you do not have any ties, and any legal action that your ex takes will be handled in that state’s courts.
How Will a Child Custody Lawyer Help You?
If your deployment is imminent, you can ask your child’s other parent to sign a legal agreement that specifies where the child will live while you’re deployed and where the child’s permanent home is. A metro Detroit child custody lawyer can draft that document on your behalf.
In fact, the right Detroit-area family law attorney will work with a military parent regarding every aspect of child custody including emergency issues, decision-making rights, visitation privileges, and the modification and enforcement of child custody and child support orders.
If you are serving our country in the armed forces, and if you are involved in or anticipating a fight over child custody, child support, or visitation, get the legal advice and help that you need, and make the call now to schedule a consultation with a metro Detroit child custody attorney.
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 or contact us online today for a consultation.