Special Concerns for Military Service Members
The Servicemembers Civil Relief Act
At the beginning of World War II, Congress passed the Soldiers’ and Sailors’ Civil Relief Act, also known as the SSCRA. This act remained largely unchanged, despite being updated in 1991, until December 19, 2003, when Congress passed the Servicemembers Civil Relief Act (SCRA). The SCRA incorporated decades of court rulings, reflected changes in society since the 1940s, and expanded protection to Reservists and members of the National Guard. The motivation behind passing the Act was to enable the people serving in the military to dedicate their time to serving the country and delay proceedings that might adversely impact the civil rights of members of the armed services during their military service.
Protections under SCRA
There are three primary areas of protection under the SCRA:
- Protection against the entry of default judgments;
- A stay (lawyer talk for “stop”) of proceedings where the service member already has notice of the proceeding; and
- A stay or setting aside of the execution of judgments, attachments, and garnishments. This can impact a family law matter in two primary ways:
- A tribunal can stay a civil law case (divorce, child support, custody, equitable distribution, etc.) until the service member, who is a party, is available to participate.
- A court cannot enter a default order against a service member who has not appeared in a case until the Court has appointed an attorney for the absent service member.
Often, the SCRA is used to create a delay in a family law matter. It can be used to postpone the “day of reckoning” and a skilled attorney can use to move a case forward at the proper pace to create the best outcome for the client. Delays are not automatic but must be requested by the service member. Even when requested, a Court can deny the application.
There are several requirements to obtain the stay, including submission of a letter or other communication from a commanding officer and a copy of the Alpha Roster including the service member’s name, and a copy of the deployment order. The important, and numerous, requirements create hurdles that even some experienced attorneys might trip over.
The Uniform Code of Military Justice (the USMJ) is a set of laws that apply only to members of the armed forces. Article 133 of the UCMJ states that “any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.”
Article 134, among other things, makes it a crime for any member of the armed services to fail to pay a just debt that is due and payable IF doing so brings discredit to the armed forces. The combination of these two Articles, in conjunction with the rest of the USMJ, add another layer of complication to family law matters involving members of the military. Each branch of the military has different rules for child support and alimony as summarized in the brief overview below:
|Air Force||The Air Force takes no authority upon itself to arbitrate disputed cases of nonsupport and personal indebtedness. Although members are expected to provide adequate financial support to family members, litigation regarding these issues first belongs in civilian courts.|
|Army||The most complex of the regulations, the unit commander must be involved with the parties have not agreed, but no duty arises until a family member (or an authorized representative) notifies the commander that the service member is not providing adequate support. If that happens, the unit commander can punish a soldier under the USMJ.|
|Coast Guard||The Coast Guard defers to civil courts, but, if a service member fails to comply, and the pattern of nonsupport is “notorious” or discrediting to the Coast Guard is subject to administrative discharge for unfitness, court-martial, or other disciplinary proceedings.|
|Marine Corps||The Marine Corps refuses to “serve as a haven for personnel who fail to provide adequate and continuous support to their family members.” The Marine Corps has a standard of financial support that, if not met, may lead to punishment under the UCMJ in a court-martial.|
|Navy||The Navy sets clear guidelines a unit commander may use to determine the adequacy of support if the parties do not agree otherwise.|
Military Asset Division
The division of property and allocation of benefits for members of the armed forces and their spouses can be one of the most complex issues of law. There are a number of moving pieces that must be considered, some of which are touched on below.
Passed in 1982, the Uniformed Services Former Spouse Protection Act, also known as the USFSPA, permitted the states to divide military retired pay in divorce and equitable distribution proceedings. It was changed on December 23, 2016, to permit ONLY the distribution of retirement pay that was based on retirement earned while the couple was married. Under the USFSPA, if a couple was married for at least 10 years while the service member was active in the armed forces, the service member’s retirement pay can be automatically sent to the ex-spouse by the Department of Defense.
|If not remarried, and former spouse:||Tricare Coverage is||Continued Health Care Benefit Program (CHCBP) is|
|Satisfies the 20/20/20 rule AND has not enrolled in the employment-sponsored health care plan||Available||May be available, but only if Tricare is lost.|
|Satisfies the 20/20/15 rule AND has not enrolled in the employment-sponsored health care plan and was divorced on or after April 1, 1985||Available for 1 year from the date of divorce; Tricare for Life is available if the 1 year of Tricare coverage occurs after Age 65||3 years of transitional CHCBP is available after 1 year of Tricare ends. In some cases, an unlimited amount of CHCBP is available.|
|Cannot satisfy either the 20/20/20 rule or the 20/20/15 rule but was covered under TRICARE or CHCBP on the day before the final decree was entered||Not Available||Transitional coverage is available for a maximum of 36 months. In some cases, an unlimited amount of CHCBP is available.|
|Cannot satisfy either the 20/20/20 rule or the 20/20/15 rule but was covered under TRICARE or CHCBP during the 18 months preceding the entry date of a final decree AND, by court order or agreement of parties, either receives a portion of Military Retired Pay or has Former Spouse Coverage under a Survivor Benefit Plan.||Not Available||Transitional coverage is available for an initial 36 months and then an unlimited amount of CHCBP is available.|
Common jargon in discussing benefits is the “20/20/20” test. This refers to military tenure/years of marriage/years of overlap. So if you joined the military in 1995, got married in 1998, divorce in 2018, and retire in 2020, then you have had 25 years of military tenure, were married for 20 years, and 20 of those years overlap. In that situation, you and your ex-spouse would pass the 20/20/20 test. Military cases can be incredibly complicated and it can be very difficult to find an attorney who is aware of the numerous nuances of the law. Some attorneys specialize in “military divorce” cases and others can hire assistance as co-counsel to assist them in military pension division and matters resolving the USFPSA.