Union, New Jersey divorce attorney John B. D’Alessandro helps clients who need an attorney with knowledge and experience in divorces where one or both spouses are military servicemembers. Divorce is a difficult time for anyone; however, servicemembers and their spouses face some unique challenges. Special rules and issues arise for spouses and former spouses of military servicemembers. Having an attorney with experience and understanding of the issues and rules governing military divorces is essential. Contact John B. D’Alessandro, an experienced attorney who can help you with your military divorce issues.
Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act was created to protect active servicemembers of the military by granting them special protections in order to allow them to focus on their duties by postponing or suspending certain civil obligations while they are deployed. It covers active duty servicemembers, including members of the National Guard who are on active duty.
The Servicemembers Civil Relief Act applies in a civil divorce proceeding where one or both spouses are on active duty, and it can affect the timing of a civil proceeding. Under 50 U.S. Code App. §202, the court has the option of postponing civil proceedings (such as a divorce proceeding) for at least 90 days. The court must postpone the proceedings for 90 days if the servicemember applies for the stay and meets certain requirements. For instance, the servicemember must be in the military (or was in the past 90 days) and have actual notice of the proceeding. The application must be in writing, and it must state why the military service affects the servicemember’s ability to appear, when they can appear, and include a statement from the servicemember’s commanding officer. If additional time is needed, more applications may be filed, but the court may or may not grant a request for more time after the initial 90-day stay.
The servicemember must show that they cannot appear because they are deployed and cannot take leave. Some courts may work with servicemembers to appear while still overseas by allowing testimony over the phone or by holding hearings when the servicemember is home on leave.
If a request for a stay is denied, and the servicemember does not show up in court, they may get a default judgment against them. The Servicemembers Civil Relief Act has special protections for default judgments; however, in this case they will not apply. An attorney experienced in military divorce cases can help you navigate this process.
Dividing Military Retirement
The Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. 1408 gives state courts the power to divide retired military pay to a spouse or former spouse through the Department of Defense. In order for a former spouse to receive any portion of retirement pay, they must have a court order. This section of law also provides a method of enforcing child support and alimony awarded in a court order. This means that state courts can and will divide military retirement benefits in a divorce proceeding. The “10/10” rule applies to these divisions.
The 10/10 Rule
It is a myth that acouple must be married for 10 years in order for the former spouse to have any rights to the servicemember’s retirement benefits. The truth is that courts can and will divide these assets no matter how long the parties have been married. The 10/10 rule simply affects who writes the check for the amount awarded. If the servicemember and the former spouse are married for at least 10 years, and at least 10 of those married years were ones where the servicemember preformed military service, the payment will come from the Defense Finance and Accounting Service, which provides payment services for the U.S. Department of Defense.
Contact John B. D’Alessandro Today for Experienced Legal Representation in Your Military Divorce Issues in New Jersey
A divorce is a difficult time in any family, but it can be especially stressful and difficult for servicemembers and their spouses due to special circumstances and issues, such as being overseas when your divorce case is scheduled in court. You need an experienced and knowledgeable attorney to help you through this difficult time and ensure your rights are protected. In Union, Essex or Middlesex counties, please contact the Law Offices of John B. D’Alessandro in Union for help today.