Military Divorce in New Jersey 101

Bedminster • Freehold • Hackensack • Mount Laurel • Parsippany
MILITARY DIVORCE 101
An Introduction to Military Divorce in New Jersey
H O W D O F E D E R A L L A W S A N D B R A N C H P O L I C I E S A F F E C T T H E N E W J E R S E Y D I V O R C E P R O C E S S ?

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DISCLAIMER
• This presentation contains general information and does not constitute legal advice.
• Be sure to direct specific questions about your own situation to an attorney.
• Weinberger Law Group is not affiliated with the United States Military.

An Introduction to Military Divorce in New Jersey
• 1: Common Procedural Issues.
• 2: Payment of Child Support or Spousal Support.
• 3: Issues in Child Custody and Parenting Time.
• 4: Issues in Equitable Distribution of Property.
• 5: Military Benefits in Divorce.
Sections
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COMMON PROCEDURAL
ISSUES

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MILITARY DIVORCE 101: 1. Common Procedural Issues.
Residency Requirements
Civilian:
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• In a civilian divorce case in New Jersey, one or both spouses must have resided in the state for at least one
year immediately preceding the filing (minimum time period is waived if grounds for divorce allege adultery).
Servicemembers and spouses have less restrictive requirements and can file:
• In the spouse’s state of residence,
• In the state where the servicemember is stationed, or
• In the state where the servicemember claims legal residence.
Military:

Where can a servicemember
claim legal residence?
Either the servicemember’s “home of record,” which will be
the state of enlistment indicated on the Leave and Earnings
Statement (LES), or
The state in which the servicemember intends to reside
after leaving service.
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Things to consider if you
have a choice of states:
• The case will remain in the original state unless there is
an agreement or successful motion to transfer it to
another state.
• Are any issues likely to be ongoing after one or both of
you move to another state? (e.g. parenting orders or
payment of child or spousal support.)
• Children must generally reside in a state for at least six
months before the state court can issue custody and
visitation / parenting time orders.
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Serving Divorce Papers
• File a complaint for divorce and supporting documents with the family court, and then
• Serve these papers on the other spouse (the “defendant”), along with a summons and proof
of service.
• There are several ways to accomplish service:
To initiate a divorce, one spouse (the “plaintiff”) must:
• Service by Mail.
• Personal Service.
• Substituted Service on a Special Agent or Service by Publication.

Service by Mail
If you know that the defendant will accept service, mail is
usually the simplest method, regardless of civilian or
military status:
• Send the complaint and supporting documents by
regular and certified mail, with a return receipt request,
to the defendant (or attorney of record).
• The defendant then returns a signed and notarized
“acknowledgment of service” form for the plaintiff to file
with the court.
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Personal Service
• Many U.S. military bases are closed to civilians and on
some, federal law governs service rather than state law.
• If your spouse is in the U.S. but off post, the sheriff’s
office or a process server can serve the papers according
to state law. There will be a fee based on mileage and
required number of trips.
• For service on post, contact the Commanding Officer or
the Provost Marshall and follow instructions.
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Service Overseas
Service overseas can be especially challenging. If you know
that your spouse may soon be deployed overseas, try to
address any urgent situation before the deployment.
• Hague Convention Countries generally permit service by
mail to a “central authority” in the host country.
• In non-Hague countries, the procedure will depend on
the agreement between the host country and the U.S
Military.
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Protection from Default:
Servicemembers Civil Relief Act
(SCRA)
The SCRA is a federal law extending various protections to
members of the service on active duty, including protection
from default.
• Ordinarily, if a defendant fails to respond to a New
Jersey divorce complaint within 35 days, the plaintiff can
ask for a judgment of divorce by default.
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Stay of Proceedings under the
SCRA
• A judge cannot enter a default against a servicemember
unless the servicemember waives the protections of the
SCRA or the court first appoints an attorney for the
servicemember.
• If the attorney cannot contact the servicemember or the
court finds that current military service or service within
the past 90 days is affecting the servicemember’s ability
to appear and present a defense, the court will stay the
proceedings for at least 90 days.
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Additional stays or stays
after notice require an
application including the
following:
• A statement from the servicemember indicating:
- how military duties affect the ability to appear, and
- a date the servicemember will be available.
AND
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• A statement from the commanding officer indicating:
- that military duty prevents the appearance, and
- that leave is not currently authorized.

Opposing a Stay of
Proceedings
• The servicemember is required to act in good faith and
exercise due diligence in attempting to arrange an
appearance in court.
• If a non military spouse believes the servicemember is
exaggerating the difficulty involved in making an
appearance, or that the servicemember’s personal
appearance is unnecessary, it is possible to oppose the
stay of proceedings.
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2. Support Payments
Child or Spousal Support
Payments
New Jersey Law and Military
Policies

MILITARY DIVORCE 101: 2. Support Payments.
• Payment of both child support and spousal
support in New Jersey is governed by state
statute (N.J.S.A. 2A:34-23).
• New Jersey Court Rules (5:6A and Appendix
IX) impose additional specific guidelines on
payment of child support.
• If you do not have a court order or legal
agreement addressing payment of support,
branch regulations or guidelines govern
temporary support payments.
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New Jersey Family Law:
Payment of Child or Spousal Support

• Support is payable at different percentages
of gross pay depending on whether there is
a spouse only (one-third), a child only (one-
sixth), a spouse and one child (one-half), etc.
• For details see: MILPERSMAN (Navy
Personnel Manual) 1754-030.
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Temporary Family Support:
U.S. Navy Policy

• Minimum support payments are based on
the number of dependents or, if higher, a
percentage of the housing allowance.
• For details see: Chapter 15: Marine Corps
Legal Administration Manual.
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U.S. Marine Corps Policy

• Minimum support payments vary depending
on living arrangements and military or non-
military status of the spouse.
• For details see: Army Regulation 608-99.
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U.S. Army Regulations

• Minimum support is calculated as a
percentage of base pay according to number
of dependents, also factoring in differences
in housing allowances with or without
dependents.
• For details see: Coast Guard Discipline and
Conduct Manual (Section 2.E.3. Support
Requirement in the Absence of a Court
Order).
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U.S. Coast Guard Policy

• The Air Force directive defers to state courts
for calculations.
• Minimum support must be “adequate.”
• For details see: Air Force Instruction 36-
2906.
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U.S. Air Force Policy

Military Income Available for
Support
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• Military income available for New Jersey
child support and/or spousal support
includes both basic and special pay, as well
as any benefits provided in lieu of pay, such
as food and housing.
• The servicemember's LES will include
amounts for basic pay and any special
amounts such as jump, dive, or flight pay.
• Calculating available gross income requires
review of the LES and assessment of an
appropriate value for any benefits received
in lieu of pay.

Enforcing Support Payments
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• A court can sometimes proceed with an
order for temporary support even if a
servicemember is attempting to stay
proceedings. A hearing may be held via
telephone conference.
• Once you have an order for payment of
support from the New Jersey Family Court,
or from the New Jersey Office of Child
Support Services, you can request wage
garnishment through the Department of
Finance and Accounting Service (DFAS).

3. Child Custody & Parenting
Time
Common Issues in Military
Divorce
Child Custody and Parenting
Time

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MILITARY DIVORCE 101: 3. Child Custody & Parenting Time
Child Custody and Parenting Time
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• State law governs parenting orders and agreements in military divorce. (N.J.S.A. 9:2-4).
• The overriding concern is the “best interests” of the children.
• New Jersey favors “frequent and continuing contact” with both parents.
• Parents are encouraged to make their own agreements.
• Parents can agree on any combination of physical and legal custody that addresses a child’s best interests.

Common Custody Issues in
Military Divorce:
Jurisdiction over Children
• Regardless of where a divorce is initiated, the state the
children have resided in for the past six months will have
initial jurisdiction over them.
• Even if a child is a U.S. citizen, jurisdiction may belong to
a foreign country.
• Establishing initial jurisdiction is critical, as authority
over modifications generally stays with the original court
unless there is a mutual agreement or successful motion
to transfer.
• New Jersey law states that if a child is living out of state
on a temporary modification order, New Jersey will
retain home state jurisdiction.
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Common Custody Issues in
Military Divorce:
Parenting During Service-
Related Absences
• Deployments can be unpredictable and require difficult
adjustments.
• Active duty can increase the risk of physical or
psychological injuries.
• A New Jersey law enacted in 2013 addresses the need
for special flexibility in child custody arrangements and
parenting plans when one or both parents are in the
service (N.J.S.A. 9:2-12.1).
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• New Jersey law prohibits permanent
custody decisions while a parent is absent
for 30 days or more due to deployment or
treatment for a service-related health
condition.
• Courts must wait at least 90 days after the
parent’s return before entering permanent
child custody orders or making permanent
changes to any already existing custody and
parenting time orders.
Protection for servicemembers in New
Jersey custody and parenting time
matters:
TIMING OF ORDERS

• The departing parent must notify the other
parent of the anticipated absence dates
and location no later than the day before
departure or the 10th day following receipt
of official notice (whichever is earlier).
• To the extent feasible, the non-departing
parent must facilitate electronic or
telephone communication between the
child and the absent parent.
matters:
PARENTS’ RESPONSIBILITIES

• Temporary modifications must allow the
departing parent to exercise parenting time
during leave, and must expire automatically
when the parent returns home.
• Original orders resume after the parent
returns home unless the other parent can
demonstrate that this is against the child’s
best interests.
matters:
CHANGES ARE TEMPORARY

• A parent cannot base a request for a
change in custody or parenting time on the
other parent’s absence due to military
service or treatment for a service-related
health condition.
• Children do not automatically stay with the
non-departing parent. The court will
consider other options:
matters:
ENHANCED FLEXIBILITY

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Flexible options for temporary changes in parenting
orders during deployment or service-related treatment:
• The child may stay with the other parent.
• The child may accompany a deploying parent.
• The absent parent may delegate parenting to a family member with a close personal
relationship to the child.

Factors courts consider in
determining appropriate
modifications:
Temporary modifications will be based on the best interests
of the child after considering all relevant circumstances,
including:
• Which parent has been the primary caretaker.
• What conditions the child would face in the deploying
country (safety, childcare facilities, enrichment
opportunities).
• What kind of arrangement the other parent or an
alternate caregiver can provide for the child.
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New Jersey Custody and
Parenting Time Hearings:
Expedited Dates and
Presentation of Evidence
• A parent facing an imminent deployment or treatment-
related absence that would prevent appearance or full
participation in an initial custody or parenting hearing,
or a parenting evaluation, can request an expedited date
before deployment without waiving rights to request a
stay under the SCRA.
• If a parent is already out of the state, courts can take
evidence and testimony by electronic means, such as
telephone or internet conference.
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4. Property Distribution
Common Issues in Military
Divorce
Equitable Distribution of
Property

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MILITARY DIVORCE 101: 4. Property Distribution.
Property Distribution in Divorce
• In New Jersey, all property and debt acquired by either spouse during marriage (except,
generally, inheritances and individual gifts) is marital property.
• New Jersey is an “equitable distribution” state, meaning that upon divorce, all marital
property is divided equitably, or fairly, but not necessarily exactly equally.
• Courts consider a long list of factors set out by statute (N.J.S.A. 2A:34-23.1).

• Distribution of retirement assets is often
complicated and attorney assistance is
crucial to avoid sacrificing rights.
• Retirement assets earned during marriage
are marital property.
• Special rules apply to distribution of military
pensions.
• If a servicemember has both a pension and
another form of retirement asset, each will
require a different method of valuation and a
different type of court order for division.
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Distribution of Retirement Assets

• States have authority to divide military
pensions in divorce, regardless of the length
of marriage.
• If a couple has been married for at least 10
years, and the servicemember has
completed at least 10 years of creditable
service during the marriage, the DFAS will
pay a former spouse’s share of a pension
directly to the former spouse.
• This is sometimes called “The 10/10 Rule.”
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Distribution of Military Pensions:
“The 10/10 Rule”

5. Military Benefits
Military Benefits in Divorce

MILITARY DIVORCE 101: 5. Military Benefits.
Military Benefits in Divorce
• Prior to final judgment, a civilian spouse who is
separated from a servicemember will generally retain all
military spousal privileges, including medical benefits
under TRICARE.
• After final judgment, the spouse will be entitled to
purchase transitional medical benefits under the
Continued Health Care Benefit Program (CHCBP), which
is similar to civilian coverage under the Consolidated
Omnibus Budget Reconciliation Act (COBRA), providing
coverage for up to 36 months.
• The servicemember’s dependent children remain eligible
for TRICARE.
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Continuing Military Benefits:
The “20/20/20” Rule
A former spouse retains full benefits—including commissary
and exchange benefits—if all of the following conditions
exist:
• The former spouse was married to the servicemember
for at least 20 years,
• The former spouse has not remarried, and
• The servicemember had at least 20 years of creditable
service during the marriage.
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Medical benefits will be suspended during any period of
employer-sponsored coverage.

Continuing Military Benefits:
The “20/20/15” Rule
A former spouse retains one year of medical coverage under
TRICARE, with no additional benefits, if the following
conditions exist:
• The former spouse was married to the servicemember
for at least 20 years,
• The former spouse has not remarried,
• The servicemember had at least 20 years of creditable
service, and
• At least 15, but less than 20, of the years of creditable
service occurred during the marriage.
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Military Survival Benefits:
Election to Pay Former
Spouse
• A servicemember may elect to provide a monthly
annuity under a Survivor Benefit Plan to a former
spouse, BUT
• Electing to do so precludes an award to a current
spouse.
• To be enforceable, the election must be in writing,
signed, incorporated into the divorce decree and
transmitted to the secretary of the appropriate branch
of service within one year of the entry of the decree.
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MILITARY DIVORCE 101: Questions? Can We Help?
.
For more information about New Jersey divorce,
visit Weinberger Law Group.com, or consult our various books on Divorce,
Child Custody, Child Support, and more:
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Do you have other questions about
military divorce in New Jersey??
CALL US: (888) 855-3014 EMAIL US: info@weinbergerlawgroup.com

WeinbergerLawGroup.com
(888) 855-3014
S C H E D UL E A F R E E CO NF ID E NT IA L L EG A L CO NS ULTAT IO N
TO D IS CUS S YOUR D IVORCE IN NE W J E RS E Y
The process and information contained in this presentation pertains to New Jersey Divorce Law.
This presentation is for information purposes only and does not constitute legal advice.
For guidance on your specific situation, please contact a divorce attorney.
MILITARY DIVORCE 101 : Questions? Can We Help?

Military Divorce in New Jersey 101

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