Managing the Military Divorce Process in New Jersey

While state law governs divorce for civilian couples, federal and state laws determine military divorce procedures and outcomes.

Divorce is complicated. Not only does a family suffer the emotional loss of security, but financial as well. Separating one household into two inevitably stretches everyone to their limits. And in the legal process, divorcing parties have so many decisions to make: child custody, child support, spousal support, property division, debt division, and health insurance coverage for the children, among many other essential and trivial details. But when one or both parties is in the military, the legal process is even more complicated.  And each military branch has its regulations to further the complication.

Where Can I File for a Military Divorce in New Jersey?

The first complexity military couples confront is where to file for divorce. For military members, three locations are possible: where they live now, their home state, or wherever they claim they live. A serviceperson filing for divorce must establish their legal residence in either of the three, depending on the state divorce laws. So, suppose the military stationed a service member in California. In that case, though they lived in Mississippi before they enlisted, either of the two may be appropriate places to file for a divorce if either state’s laws allow the legal residence designation. And if the member was born and raised in New Jersey, they may declare that state as their legal residence, even if they lived briefly in Mississippi after leaving New Jersey.

Another wrinkle in the divorce process occurs when a service member is overseas and cannot attend court hearings. Divorcing couples may need to go to court if they cannot agree on a support and custody arrangement for minor children, for example. So, if a deployed husband is overseas and his wife files papers with the court for child custody and support, the deployed spouse is at a disadvantage. They cannot appear in court to present their concerns and evidence opposing or differing with their spouse’s request for a custody and support order. However, establishing child support and custody is essential and a high priority in a divorce proceeding in the eyes of the law and courts.

In some cases, telephone appearances are permissible and solve the problem for some hearings. However, other hearings may have to wait until the service member returns from overseas. The Service Members, Civil Relief Act protects service members from the disadvantages of their deployment in legal matters that require timely filed court papers and appearances. However, in weighing the rights of service members and children needing support, the court typically allows a temporary custody and support order pending the service member’s availability to appear in court. In addition, the military dispenses child and spousal support amounts without a court order or agreement between the parties differently from branch to branch. These issues are nuanced when undergoing military divorce, so it is important to have an experienced attorney assisting you throughout these proceedings.

How is Child Support Handled in NJ Military Divorces?

When non-military couples obtain a court order for spousal or child support, they can also apply for and get an order for a wage garnishment. In that way, support payments come from the payor spouse’s employer to the supported spouse. In military divorces, the party seeking support must apply to the court for a wage garnishment from the service member’s pay. All support calculations derive from the income and expenses of the payor spouse. The member’s paycheck stub or Leave and Earnings Statement evidences the income, and the court can estimate their expenses, including food, gas, housing, and other necessities.

But child support payments also include the time-sharing arrangement between the parties, which may be unstable in a military family. Thus, the family court weighs the children’s need for stability and the service member’s duties and constraints. In civilian divorces, if one party has the children 80% of the time or more, the court considers that they incur more expenses feeding, clothing, and educating the children. Civilian child support orders consider the maintenance needs and costs of children and which party bears the brunt of those costs. However, service members who cannot maintain a stable parenting schedule are at a disadvantage until they leave the service or relocate closer to the children’s residence a. They also need consideration. Depending on the state laws, a court may delay ordering permanent child custody and visitation until the member ends their deployment. So, when a service member deploys overseas for 30 days or more, a New Jersey judge may not issue a permanent child custody and visitation order until 90 days after the member’s deployment ends.

How are Military Child Custody and Visitation Issues Decided by NJ Courts?

New Jersey enacted laws to allow greater flexibility and creativity to judges deciding child custody and visitation. Family court judges examine many factors before deciding where the children reside and when determining custody and visitation. The best interest of the children always takes precedence, and sometimes the best interests of the children are to be with the parent deployed overseas during their deployment. Child custody and visitation orders are always subject to modification as the parents’ situations change and the children grow and develop. What is suitable for children under ten years of age may differ when they are teenagers, and that is true for all custody considerations. So, if a child resides with their deployed parent temporarily, New Jersey retains jurisdiction to modify and change the order. Otherwise, the service member would have to apply for a custody order with the foreign government where they reside while deployed.

So, New Jersey laws protect service members from the disadvantages of military life, which often require the member to pick up and leave at a moment’s notice. But that does not mean the member gives up their rights to maintain contact and visitation with their children. Creative adjustments in visitation, like telephone visits or temporary modifications to accommodate a member’s leave time, require the flexibility and patience of the family. Fortunately, family law attorneys and judges know how to create fair arrangements and trade-offs that suit the family best in the circumstances. So, if possible, children can fly to see parents stationed out of state on vacation times to make up time lost in the weekly visitation schedule. Zoom, FaceTime, and Skype scheduled meetings may also pick up the slack of lost physical custody time. And grandparents may play a role in maintaining custody arrangements when the primary custodial parent must deploy. Moreover, New Jersey allows grandparents temporary custody to maintain a stable residence and lifestyle for the children.

Not only custody and support, but property division differs in NJ military divorces.

Ordinarily, one spouse has an interest in the other spouse’s pension or retirement through employment. However, the plan administrator divides the pension benefits accrued during the marriage according to the pension plan and order of the family court. Typically, the spouse of the pension holder must submit a qualified domestic relations order to the court to order the pension plan administrator to apportion the non-employee spouse’s share of the pension. For military spouses, the Uniformed Services Former Spouses’ Protection Act recognizes the military spouse’s claim to the service member’s pension. However, special procedures and rules apply to a military pension division, which differs from the civilian pension and retirement division process. And for military spouses in long-term marriages of 20 plus years, during which the military spouses served at least 20 years, the ex-spouse may maintain health care coverage.

Contact our NJ Military Divorce Attorneys for a free, confidential consultation at our Little Falls Office.

The specific rules and procedures for military divorces require specialized legal knowledge. If you are considering a divorce and you or your spouse is in the military, prepare for the process by consulting with a family law attorney at The Montanari Law Group, LLC.

If you are overseas, as explained before, the process may be different from the ordinary process. But if you are in or outside of the country, our lawyers assist service member clients with divorce throughout New Jersey, including in towns such as Bloomingdale, Haledon, Hawthorne, Paterson, Ringwood, Passaic, Jersey City, and Wanaque. Please do not hesitate to give us a call to discuss your case in a free and confidential consultation.

We are highly experienced in military divorces and are here to answer all of your questions and discuss what we can do to assist you with the unique aspects of your case. Ask a qualified attorney at (973) 233-4396 what to expect for you and your family during the military divorce process by contacting us today.