The legal process for separation and divorce is the same in Massachusetts regardless of whether you’re in the military. A Complaint for divorce begins the process, which must be filed in the Probate and Family Court. A “no-fault” divorce might be filed based on the irretrievable breakdown of the marriage, either as an uncontested petition by both parties, or by one of the parties as a contested matter. A divorce in Massachusetts is also available based on fault grounds for adultery, gross and confirmed intoxication, desertion or non-support, cruel and abusive treatment, impotency, and confinement to a penal institution for a period of five years or longer. However, in nearly every military divorce, the filing party goes with the “no fault” option because, first, you don’t need to prove a reason for the divorce, and second, maintaining cooperative tone usually provides for a better result.
Additionally, the Court will ultimately decide the issues of alimony, child support, child custody, and property division, although the servicemember’s income, assets, retirement, debt, and ability to perform as an active parent will all be taken into consideration.
There are, however, some specific issues that may arise during the divorce if one or both spouses are in the military.
First, the issue of the service member’s domicile may arise. It is important to establish personal jurisdiction over the parties in a divorce matter, which means the divorce must be filed in a state court with the power to bind the defendant to its judgment. The domicile of the parties is particularly difficult in the case of service members, who are often mobile. Generally, the court looks at domicile as the place where the party intends to live and settle. Some considerations to help include questions about where the person is registered to vote; where the person has registered his or her car; and where the person files state and local taxes, among others.
Second, the Servicemembers’ Civil Relief Act provides for protections to those entering active duty from certain civil judgments, particularly in the case of default judgments. These protections may include a stay (usually 90 days) from certain civil judgments while the service member spouse is on active duty. An affidavit of compliance with the law may need to be filed in Family and Probate Court.
Property Issues in a Military Divorce
There might also be particular issues with property division and alimony matters that apply to military spouses, particularly in the case of a long-term marriage where there is also long-time service by the service member spouse. The Uniformed Services Former Spouses’ Protection Act allows for the division of military retired pay during a divorce. The court may order fixed dollar amounts, percentage amounts, formula awards, and hypothetical awards. In addition, the USFSPA allows a former spouse to collect payments directly from the Defense Financial Accounting Service as long as certain qualifications are met.
In addition, there might be issues with applicable federal health benefits, life insurance, survivor benefits, and other potential benefits which may be an integral part of the divorce. It is essential to carefully consider these benefits during the process of marital property assignment and alimony.
The assignment of other (general) marital property is decided using a process called equitable distribution in Massachusetts. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how best to divide marital property in the fairest manner in each particular case. There are many factors that the Court considers as part of this process, including the length of the marriage, the vocational skills and employability of the parties, the income and future earning capacity of the parties, and the liabilities, among many others.
Custody Issues in a Military Divorce
Generally, the Massachusetts Probate and Family Courts decide issues of custody by weighing what is in the best interests of the child. The “best interests of the child” standard considers many factors, including the primary caregiver, the needs of the child, the ability of the parties to care for the child, and sometimes, the preferences of the child, among many others. Child support is ordered based on the formula set out in the Massachusetts Child Support Guidelines.
Special considerations arise in regard to military deployments and relocations. In the case of a deployment, for example, it might be necessary to award physical custody to the non-service member spouse on a temporary basis. It is important to note here that the Courts will not automatically give permanent custody to a non-service member spouse. Rather, the law of state in which the child is located will govern regarding custody, and the court will decide what is in the best interests of the child by considering relevant factors.
Divorce and Family Law Resources for our Armed Services
The Department of Defense’s Defense Financial Accounting Service has a helpful page regarding garnishment: https://www.dfas.mil/garnishment/usfspa/legal.html
The following two websites are also helpful to those interested in more information about the financial protections of military spouses: http://www.military.com/benefits/military-legal-matters/uniformed-services-former-spouse-protection-overview.html and http://www.militaryfamily.org/info-resources/marriagedivorce/
If you have any questions about issues of divorce, custody, or support, you may also schedule a free consultation with our office.