Getting divorced is a stressful, sometimes emotionally fraught, process for both parties. Determining who gets to keep what property, custody rights, and other matters can be contentious and take a toll. When one of the divorcing parties is a member of the United States Armed Forces, there are even more rules to follow and considerations to consider. We created this guide to military divorces in New Jersey to help service members and spouses understand the process and what to expect when going through it.
Where a New Jersey Military Divorce Gets Filed
U.S. servicemembers move around often, so one question that stumps many couples is where they actually have to file for divorce, as it differs by each state. In New Jersey, servicemembers can file for divorce if one of the following is true:
- The servicemember is stationed in New Jersey
- The servicemember's spouse is currently residing in New Jersey
- The servicemember claims residence in New Jersey
Most courts in New Jersey will also allow servicemembers to attend hearings by phone or video conference, if necessary, as it's possible the servicemember is stationed elsewhere and unable to attend the divorce hearings in person.
The Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act (SCRA) is a law that suspends judicial or administrative proceedings that adversely affect the civil rights of servicemembers during their time serving in the military. The SCRA provides an option to postpone the divorce proceedings until a time when the servicemember is able to participate, but it does not grant them any sort of immunity.
Since staying a divorce case for 90 days or more can have negative repercussions for the civilian spouse when it comes to child support, New Jersey courts generally allow a child support hearing to proceed even if the servicemember is not available—as long as the civilian spouse has all the proper income information for both of them.
Child Support and Custody in a Military Divorce
When a servicemember in New Jersey is going through a divorce, the court must determine the amount of the child support award by looking at income information for both spouses.
If a servicemember's wage is to be garnished for child support payments, it must be through a court order. The New Jersey family law court evaluates a servicemember's gross income, which is listed on the Leave and Earnings Statement (LES). Gross income for a member of the military consists of the following:
- Basic Pay
- Basic Allowance for Housing (BAH)
- Basic Allowance for Subsistence (BAS)
- Cost of Living Allowance (COLA)
The LES may list other allowances a servicemember receives, such as a hostile fire pay or family separation allowance. It's important to review the LES to ensure the courts have a full accounting of the service member's gross income. In New Jersey, the Income Shares Model helps the courts decide how much child support each spouse should pay.
Child Custody
Custodial rights in military divorces differ from civilian divorces as well. In New Jersey, the courts are barred from making a decision regarding permanent custody and visitation rights until 90 days after the conclusion of the servicemember's deployment. According to N. J. S.A. Title 9:2-12.1, they're also not allowed to grant modifications to a custody order on the basis of military deployment alone.
Child support rules during a divorce differ for each branch of the military, and these regulations take effect if there is no court order already in place. Generally, it's a better idea to go through the New Jersey family courts to get a child support arrangement, as they're better equipped to handle these kinds of cases than the military.
Spousal Support
A military spouse may be entitled to receive spousal benefits after a divorce. The need and amount for alimony is calculated based on the gross income of each spouse, as well as other factors, including:
- Earning capacities
- Age and health of each party
- Standard of living during the marriage
- Parental responsibilities
- Tax consequences of the alimony award
A list of other factors taken into consideration can be found in N. J. S. A. Title 2A:34-23.
How Does a Military Divorce Affect Benefits and Pension?
In a military divorce, benefits, pensions, and the division of property differ from in civilian divorces. Marital property is considered everything acquired by the spouses after the date of their wedding and is subject to division by the courts if the spouses cannot agree on who gets what. Separate property is all inheritance and property purchased before the marriage if it hasn't comingled with marital property.
Since a servicemember's retirement benefits are considered part of the marital property, the non-military spouse may be entitled to a portion of those benefits. In New Jersey, there's no formula for determining how large the portion is, but it cannot exceed 50% of the servicemember's retirement benefits or 65% if it includes child support.
The 20/20/20 Rule
A former military spouse may be entitled to all military benefits and installation privileges if they meet all three criteria of the 20/20/20 rule, which are:
- The ex-spouse was married to the servicemember for at least 20 years
- The servicemember had at least 20 years of creditable service
- There is an overlap of at least 20 years between the marriage and the military service
Some benefits, like medical, are terminated or suspended if the former military spouse remarries.
Why You Need a Family Law Attorney With Military Divorce Experience
Working with a competent family law attorney is recommended when going through a divorce, but when it's a military divorce, you need a lawyer who has experience dealing with legal issues for servicemembers as well. Your attorney should know all the laws regarding child support, alimony, custody, and property division that apply to your situation, as they're not the same in civilian divorce cases. They'll also need a thorough understanding of how military pay works, as well as know the protections offered through the SCRA.
Joseph D. Lento has helped military families throughout New Jersey deal with divorce and child custody matters, helping them through a difficult process and protecting their rights. Contact the Lento Law Firm at 888-535-3686 if you have questions about starting divorce proceedings as a military family.
