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Massachusetts Divorce and the Military

Members of the military and their families face a unique set of challenges in their service to our country.  They may be forced to uproot their lives repeatedly as a service member is moved from base to base stateside, and spouses/parents may spend long periods of time away from their family due to overseas deployments.  These unique challenges affect the family not only in their day-to-day lives, but when one partner seeks divorce.

Divorces involving a service member (or in those cases where both spouses are members of the service) are governed not only by state law, but by federal law and the Uniform Code of Military Justice (UCMJ).  Service members are entitled to unique benefits that may complicate a divorce; they are also subject to enforcement of obligations to family members not just through the civilian courts, but through the UCMJ.  Beyond the legal challenges, military families, as stated above, have unique challenges to consider when making decisions about how their family will work after a divorce.

Family Support: Child Support and Alimony

Family Support is a blanket term that wraps in both alimony or spousal support payments and child support payments.  It should be noted that a Court can enter a support award regardless of a stay of proceedings under the SCRA in order to avoid a hardship.

Family support is one of the issues where being a member of the military makes significant changes.  All states have their own laws concerning family support, but members of the military are also under the authority of military regulations governing their obligation to support dependent members of their family.  Members of the military can be subjected to disciplinary action for failing to meet support obligations as outlined in civil agreements on top of contempt actions in the civilian courts.  The military also has regulations governing how much a military member should pay in support even absent a court order for support.

Each branch of the military has its own formula for how family support obligations are calculated and who is eligible to receive support.  Often, the amount owed according to the individual branch’s calculation will differ from the amount owed according to the state.  In order to ensure that the amount of support paid is fair and reasonable considering all of your family’s circumstances, your attorney should be aware of and review these figures.  Even before there is a civilian court order or an agreement between the parties about the amount of support to be paid, military regulations will require that support be paid according to the individual branch’s calculation.

Child Support Obligations of Military Servicemember

Members of the United States military receive a wide array of benefits.  Even their basic compensation is unique from most forms of civilian payment (civil servants like police officers and firefighters might be seen as receiving a comparable form of compensation).  Military members receive base pay as well as other forms of monetary compensation, all of which is detailed on their Leave Earnings Statement (LES).

If a service member’s dependents no longer reside with him or her, certain forms of monetary compensation will be decreased to reflect the change in that service member’s cost of living.  The whole of a service member’s monthly monetary compensation will be considered income under the Massachusetts Child Support Guidelines and taken into account when calculating support obligations.

Serving Process on a Member of the Military

When anyone starts a legal action against someone else, the defendant needs to either “accept service” (voluntarily acknowledge that they have received the documents that start the case) or be served with process (be provided the documents by a third party who submits a statement saying they provided the documents that start the case in a way that conforms with the appropriate rules).

The first thing one needs in order to properly serve another party is knowledge about where he or she is.  If an individual is separated from his or her military spouse for some time, it may be the case that the service members current whereabouts are unknown.  Your attorney can work with you to help locate your spouse.  If you and your attorney are unable to locate your spouse, you may be eligible to use certain alternative forms of service designed to allow a divorce to proceed despite the inability to locate the defendant spouse.

Presuming you know where your spouse is or have been able to locate him or her, if your spouse lives on a military base or is serving abroad, the rules of how they will be served become more complicated.  Military bases have their own rules about who can be on base and what that person can do while they are there.  Your attorney should know how to get service accomplished in a way that conforms with both the rules of Massachusetts, and the rules of the military base.

Going Though a Military Divorce with Children

Like any family with children, military families going through divorce need to set out a parenting plan.  It should be noted that even individuals who have never been married but who have children together can establish a parenting plan.  A parenting plan outlines how parents will make joint decisions, where children will live, and when/how much time each parent will spend with children.  What makes military families unique is the challenge faced by parents who may be required to move out-of-state or overseas involuntarily.  This challenge is doubly hard where both parents are members of the military.

It is important that your attorney understand the unique challenges faced by the children of military families and their parents.  When attempting to resolve your case, he or she needs to be able to help you consider building a back up plan directly into your separation agreement for times when your family may be forced to live apart due to one or both parents’ status.

Contested Military Divorces

In this series, we’re discussing the unique aspects of a divorce involving members of the United States military.  Yesterday, we looked at some issues that should be considered when making the decision to separate. That being said, it seems most logical to start at the beginning: starting the case itself.  There are many ways in which beginning the contested divorce process may be different for military families, especially when one gets into the details of a specific family’s unique situation.  This blog series is in no way an exhaustive discussion of these unique challenges, and we would recommend calling our office for a free phone consultation if you have a specific question that is not addressed here.

It is worthy of note that if a military family is eligible to participate in an uncontested divorce, the issues we’ll be discussing over the next several days do not apply to them.  As is true for strictly civilian families, the uncontested divorce process is quicker, easier, and less expensive (both emotionally and financially).  At Infinity Law Group, we always encourage our clients to attempt to work with their spouse towards an uncontested divorce before resorting to litigation.

Over the coming days, we’ll discuss three areas that will be common to many military families:  1) Where do members of the military and their families live for the purpose of divorce? 2) How do you serve a military member with process?; and 3) What happens if/when a member of the military is deployed overseas during a divorce?

SCRA: Servicemembers Civil Relief Act

The SCRA is a federal law that entitles service members (as well as reservists and national guard members) to a stay of legal proceedings while they are deployed.  Essentially, the SCRA is a pause button for civil legal cases so that members of the military can devote their full attention to their job while deployed, and to prevent them from being unfairly penalized if they are not aware of or cannot answer to a civil case.

Though we are discussing the SCRA in the context of the beginning of a case, it should be noted that it really does operate like a pause button—it can be pressed any time during the proceedings so long as the military member is eligible to use it.  The reason we are discussing it at the beginning of the series is because the SCRA should be taken into consideration when making decisions about filing for divorce.

If you are seeking divorce and you know your military spouse may soon be deploying, you should understand that your case could be put on hold while your spouse is deployed.  There may be reasons that it is beneficial to file the case despite the pause, or it may be best to simply wait out the deployment prior to filing.  A service member filing for divorce may also want to think long and hard about filing, as they may be prevented from using the SCRA to pause their case under certain circumstances.

Military Divorce if a Spouse Doesn’t Live in Massachusetts

In order to grant a divorce and make decisions about a family, the Massachusetts courts need to have authority over the people and underlying issues involved.  To have this authority, at least one party needs to have lived in Massachusetts for at least one year, or the cause of the divorce needs to have happened in Massachusetts.  In most cases, a party will be relying on the first option (residence) because they are not filing for a specific cause but instead on “no fault” grounds.

For most people, where they live for legal purposes is a pretty straightforward question.  Where they live for legal purposes is no different than where they live in general.  For military families, however, this question may be less straightforward.  Because members of the military are often required to move across state lines or even outside of the country on an involuntary basis, federal law allows them to keep their original residence if they choose to.  For instance, if a resident of Massachusetts joins the military and is then stationed in New Jersey for years, he or she can choose to remain a resident of Massachusetts rather than becoming a resident of New Jersey.  That military member also has the choice of changing his or her residence. This means that a member of the military’s domicile or legal residence may be different than where he or she has lived for the last twelve months and may affect his/her eligibility to file for a divorce in Massachusetts.

On-Base Housing After a Military Divorce

The state of Massachusetts doesn’t recognize “legal separation” (though there is something called “separate support” that is available without filing for divorce). When a couple (including a service member) separates, however, there are some regulations that family members should be aware of.

The most important consideration is for those military families that live in base housing.  Non-military members cannot remain in base housing if there is not a service member residing in the home.  Of course, this rule does not apply if the service member’s absence is due to a deployment, but it does apply if a couple has separated.  If you are a non-military spouse residing in base housing, it is unlikely you will be able to stay in your base housing for more than 30 days after you and your spouse have separated. This is something that should be considered when making decisions about the next steps for your family.

 

As is always true, every family is different, and thus, every divorce is unique.  We would recommend that if you are seeking a divorce, you contact our office for a free phone consultation.

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