Challenges In Military Divorce And Custody Cases
CHALLENGES IN MILITARY DIVORCE AND CUSTODY CASES
Oklahoma Military divorces are a mixture of Oklahoma family law, federal law, and military regulations that apply to any divorce involving at least one service member. Numerous Oklahoma laws and federal laws apply in any civil court proceedings involve members of the U.S. Armed Forces, including military divorce. This page is intended to touch upon the majority of issues in military divorce, child custody, and benefit cases involving at least one service member spouse or parent.
This overview of military divorce is applicable to any case involving one parent or party that is or was in the U.S. Army, Air Force, Coast Guard, Marine Corps, Navy, National Guard, Reserves, National Oceanic and Atmospheric Administration (“NOAA”), or Public Health Service (“PHS”). Other pages on our website discuss topics applicable to divorce, father’s rights, child custody, paternity, and other family law issues in all cases in Oklahoma; however, this page is specific to military divorce.
Every military divorce has its own military specific challenges, which your chosen Oklahoma military divorce attorney must help you through. Contested or uncontested, the military divorce process can be stressful and cause a wide range of emotions. It is important you obtain experienced military legal counsel to ensure you know your rights and that they are protected. Regardless of the issue in your military divorce, having a strategy and understanding the laws and facts of your military divorce will help you obtain the best results in your Oklahoma military divorce case.
Whether you or your family member is stated at Tinker AFB, Ft. Sill, Vance AFC, Altus AFB, McAlester Army Ammunition Army Base; a Reservists; or a National Guardsmen, CANNON & ASSOCIATES has been there before with clients facing Oklahoma military divorce. This page is an overview of the most common issues in Oklahoma military divorce and military child custody disputes, clients are facing when they contact CANNON & ASSOCIATES.
Filing for Military Divorce in Oklahoma
The location or state you file for military divorce matters, because the laws of that state will govern child custody, child support, spousal support (alimony), property division, and other issues. Division of property in a military divorce will govern property division across multiple states or jurisdictions in many cases.
Property division in military divorces is often complicated by the location and value determination of property. As an example, if a service member files for military divorce in Oklahoma, while stationed at Fort Sill, he or she would be subject to Oklahoma equitable distribution laws. However, a divorce in Arizona or Texas would be subject to community property law.
Before filing for military divorce in Oklahoma you must determine, if jurisdiction exists. Jurisdiction means the court has authority to hear or decide a matter, i.e. a divorce or child custody dispute. The proper jurisdiction to file your military divorce is dependent upon where you and your spouse reside, are stationed, and are domiciled. The term domicile means the location a person has expressed the intent to remain indefinitely.
There are only three states that jurisdiction for a military divorce may be proper: the service member’s resident state; the service member’s legal state of residence or “domicile; and the service member’s station. In order to file for divorce in Oklahoma either the service member or their spouse must have lived in Oklahoma for six months prior to filing for divorce. Military families are often separated by orders or military duties across state lines or even farther. When jurisdiction is proper to file for divorce in Oklahoma, the Petitioner files a Petition for Dissolution of Marriage with the Court Clerk in the appropriate county in Oklahoma.
Competing Divorce Petitions
Can a civilian spouse file for divorce in Oklahoma after being served by their service member spouse in a divorce action outside of Oklahoma? Yes. The jurisdictional rules for Oklahoma require a party to have lived in the state for six months and within the county for thirty days prior to filing for divorce in Oklahoma. Different rules and/or protections may apply to service members seeking divorce in Oklahoma. A military divorce action can be initiated in Oklahoma without a service members being stationed at an instillation within Oklahoma, including: Tinker Air Force Base, Fort Sill, Vance Air Force Base, Altus Air Force Base, or McAlester Army Ammunition Army Base. CANNON & ASSOCIATES represents service members stationed in Oklahoma, other states, or outside the United States in contested family law and divorce cases.
Can I challenge service of process in Military Divorce in Oklahoma?
Yes, if a civilian spouse files for divorce in Oklahoma, then the military spouse must be personally served with the summons and petition for dissolution of marriage. Personal service is difficult on military instillations and even more difficult when a service member is stationed overseas or in a combat zone. Private process servers must seek permission from instillation commanders in order to come upon post to serve process. Additionally, international laws apply to service of process outside the united states. An experienced military divorce attorney can help you determine how service of process must be completed.
SCRA Protections in a Military Divorce
The Servicemembers Civil Relief Act (“SCRA”) is federal law that protects service members’ rights in a variety of ways. Specifically, in military divorce, the SCRA protects service members from being compelled to appear and answer a military divorce petition, due to the conflict with training or the mission at hand. The SCRA is codified at 50 United States Code §§ 3901 et seq. Civil and administrative proceedings can be stayed by a military service member, including divorce, child custody disputes, and other family law actions. These protections apply to Army, Navy, Air Force, Marine Corps, Coast Guard, and certain activated service members in the National Guard, NOAA, and Public Health Service.
The SCRA allows service members to focus on the mission of their military duties with full knowledge they can wait to appear, defend, or fight their divorce of family law case upon returning from their assignment. The Oklahoma Supreme Court’s recent decision in Kohler v. Chambers, 2019 OK 2, 435 P.3d 109 (Okla. 2019) changed the laws in Oklahoma concerning when a service member is protected under the SCRA. In Kohler, the Court held deployment for the Deployed Parents Custody and Visitation Act (“DPCVA”) purposes requires one of three circumstances: support of combat, contingency operations, and natural disasters.
The SCRA and Oklahoma Deployed Parents Custody and Visitation Act, OKLA. STAT. tit. 43 Sec. 105 et seq. protects service members from a default judgement in divorce proceedings. Without these protections, an Oklahoma family law judge could enter a default against a respondent, if he or she failed to act upon the petition for dissolution of marriage. However, the SCRA will protect a military spouse from default judgment by requesting a stay of the proceedings upon returning from active duty or deployment. Prior to entry of a default judgment, the Petitioner must file an affidavit of military service regarding the respondent’s military service status. Although the SCRA can delay divorce or child custody proceedings, it does not cancel divorce or child custody proceedings.
Service Member’s Status Unknown
What happens if the respondent-spouse’s military status cannot be determined? The court has options under the SCRA, including applying the same protections discussed above or appointing an attorney to represent the respondent that cannot be identified. It is important to speak to a qualified military family law attorney, if you cannot identify the location or service status of your spouse.
Oklahoma Child Custody in Military Divorce
Oklahoma family law courts must consider the best interest of the child in Oklahoma child custody cases. Specifically, in determining legal decision-making and parenting time; the best interests of the child is the primary factor. Although the SCRA could delay or stay child custody proceedings, it will not prevent the non-service member spouse from exercising temporary custody until the service member returns from deployment or duty.
Contested child custody proceedings are possible with any divorce as the emotions involved sometimes make it difficult for parents to negotiate details of custody or a parenting plan. In military divorce cases, custody proceedings may be affected by the Hague Convention and Oklahoma’s Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The U.S. is a member of the Hague Convention which controls many international domestic relations matters, including divorce, legal separation, child custody, parent abduction of a child, recovery of child support, and service of process. The jurisdictional issues involved in military divorce are difficult for parents, attorneys, and judges alike to understand.
The process of establishing Oklahoma as a child’s home state for UCCJEA and Hague Convention purposes requires a detailed understanding of these laws. The frequent relocation of service members may increase the difficulty of determining home state for children. The UCCJEA offer ways for Oklahoma family courts to establish jurisdiction over a child custody matter. When a child is present in Oklahoma the court may exercise emergency jurisdiction, even if a military divorce is pending in another state. Emergency jurisdiction can only be used when a child is present Oklahoma and has been abandoned, abducted, or another series event has occurred.
What if military duties are incompatible with parenting?
Some Service member parents cannot maintain a normal parenting schedule due to being frequently away for training or deployment purposes for long periods of time. These parents should seriously consider whether or not they are interested or capable of maintaining equal parenting time and legal decision-making authority over their children. Service member parents should consider what custody orders are feasible when their deployments or training create a hectic schedule. This important discussion should be had with an experienced military divorce attorney that can assist in forming a child custody plan that meets your needs and obligations.
Additionally, a temporary custody order may entered by the parties before the family law court during deployment. This option may be better for the child and is based on an agreement to return to the status quo upon return from deployment. A temporary custody order will save you from a later contested child custody proceeding related to return from deployment or training. Upon an agreement, the resulting consent order, entered by the family law judge, would include a description of the deployment that necessitates the custody change and date the service member expects to return.
Military Family Support
Family support in divorce includes spousal support and child support orders. Spousal support is based upon a parties’ need and the other parties’ ability to pay. Spousal support may be agreed in both amount and duration and simply be an aspect of a divorce decree or the issue can be litigated at trial. Current federal law restricts the award of spousal maintenance awards in military divorce under the Uniformed Services Former Spouses’ Protection Act (“USFSPA”).
Calculating Child Support
Child support is a right of the child, not the parent with primary custody. Child custody does directly relate to the amount and award of child support. Under Oklahoma, as well as every other state’s laws, each parent has a duty to support his or her natural or adopted child. Prior to a child support award a paternity case may be necessary to determine the biological father, which can be accomplished by a court ordered DNA test. The first step in identifying the proper amount for child support in Oklahoma is to run the Child Support Calculation under the Oklahoma Child Support Guidelines. The child support calculation focuses on the following: income, overnights with the child, child care costs, health insurance, and other obligations.
As in most cases, the issue of child support is more complicated with a service member parent. What income from service is included in gross income? Can fee on-base housing be counted as income, as it greatly decreases the service member’s living expenses? Can one time re-enlistment bonuses be included in the service member’s income? What affect does deployment have on child support determinations? These issues must be explored and will help you and your military child custody attorney form your strategy in your child custody case.
Military Duty to Provide Family Support
Although every branch has requirements for family support by regulation; the preference for all branches of the military is court ordered support or support agreed to by the parties. You have access to an enforceable military support order prior to obtaining a court order against your service member spouse or parent to your child.
Enforcing Child Support and Spousal Support
You will likely be sent away, if you notify a civilian spouse’s employer for his or her failure to provide spousal or family support. However, in the military, a dependent spouse may raise a spousal support or child support issue to the service member spouse’s commander. In many cases this process is faster and easier than seeking court assistance. Contacting a service member’s commander can result in the service member being punished for violating the applicable military regulation requiring him or her to provide family support. A Commander may: reprimand a service member (a permanent mark on his or her service record), forfeit pay of the service member, or criminally sanction the service member for noncompliance with military regulations. Additionally, a Commander may schedule support payments; however, the Commander does not have authority to address or enforce support arrearages.
The military spouse may request interim relief of the support obligations from the Commander in certain circumstances, including: being the victim of domestic violence; the other spouse’s gross monthly income exceeded the service member’s; the service member has met his or her support obligation; or the spouses have lived separately and apart for at least a year.
Garnishment of Service Member’s Pay
A spousal support order or child support order may be enforced against the service member by garnishment or involuntary allotment, if determined necessary. However, the service member’s pay cannot be garnished by the Defense Finance and Accounting Service (“DFAS”) without a court withholding order that directs collection of support and arrearages. Therefore, it is best to seek court orders for child support and spousal maintenance. DFAS can garnish a service member’s pay based upon support orders through involuntary allotment. DFAS uses involuntary allotments to pay outstanding support from disposable pay and housing allowance to the service member. In order to seek this assistance, you must provide DFAS with the evidence of two months of arrears in support.
Additionally, VA disability payments may be garnished to satisfy outstanding child support obligations. Additionally, Uniform Code of Military Justice (“UCMJ”) action may be taken against a service member for “conduct of a nature to bring discredit upon the armed forces.” An offense punishable under UCMJ Article 134. Conduct unbecoming an officer and a gentleman is a potential action as well under UCMJ Article 133.
In state court the violation of a child support order may result in jail time or a contempt citation. In state court, the violation of a spousal support order may result in both contempt and a judgment providing the dependent spouse a judgment, which a creditor could execute against the debtor spouse. Further, the SCRA does not protect a service member from criminal prosecution or contempt for non-payment of child support.
Property Division in Military Divorce
As discussed above, the frequent relocation of service members often results in marital assets and marital property being scattered across multiple states beyond Oklahoma. However, Oklahoma family law judges have authority to render judgment concerning property outside the state of Oklahoma in a military divorce case, if jurisdiction is proper over the parties. However, separate assets of one spouse in another state will remain separate assets in an Oklahoma military divorce action.
Dividing Military Pensions
The law and issues related to division of military pension and military retirement are very complicated. Therefore, these issues are addressed in a separate page of our website: Division of Military Retirement and Military Pensions. We hope the information concerning all aspects of Oklahoma military divorce on our website is useful to you.
EXPERIENCE MILITARY DIVORCE ATTORNEY
CANNON & ASSOCIATES is dedicated to Fierce Advocacy for service members and service member spouses seeking military divorce in Oklahoma. Military divorces and military child custody cases are especially complex due to the issues related to military life and the protections afforded to military members. Founder, John Cannon, is a currently serving Judge Advocate in the Oklahoma National Guard and has helped hundreds of service members and non-military spouses through the process of seeking a military divorce.
You should contact an experienced Oklahoma Military Family Law Attorney, if you are a service member or service member’s spouse facing military divorce or child custody issues. Many hazards exist with military families considering divorce. The dangers primary concern division of marital property, jurisdiction for divorce, military retirement and disability pay, as well as child custody. Your interests demand you contact a military family law attorney that understands the unique issues and challenges associated with military divorce and family law issues.
As a service member and JAG, John Cannon, understands the unique circumstances faced by military member or military family member in your military divorce or military family law case. Service members stationed in Oklahoma should be confident their chosen Oklahoma military divorce attorney understands the circumstances faced in military divorce or custody matters.
Experience matters when you are facing divorce or child custody issues as a service member or service member’s spouse. It is important to know the family law attorney you hire is dedicated to your cause and versed in military family law. John Cannon, owner of CANNON & ASSOCIATES, is a judge advocate and experienced in military family law issues and protections. He will personally represent you and work along-side you during the entire process. He will keep you informed. John has the experience you need and will bring it to bear in your case.
Additionally, John Cannon has an outstanding record of reaching the best possible outcome for hundreds of clients, evidenced by receiving the highest possible AVVO rating – 10 (superb). Contact CANNON & ASSOCIATES, PLLC to protect your rights and Fight for you in your Oklahoma military divorce or custody case. You may send an email inquiry, complete the contact form on our website, or call at (405) 657-2323 for a free confidential consultation.
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