FAQ: Military Divorce

FAQ: Military Divorce

Introduction

Divorce in Oklahoma is especially complex when military members are party to a divorce. This page is intended to answer some of the most common questions clients ask or should ask when facing an Oklahoma military divorce.  Contact CANNON & ASSOCIATES for a free consultation and more information on the process of obtaining a military divorce in Oklahoma. John Cannon, owner of CANNON & ASSOCIATES, is a currently serving Judge Advocate in the Oklahoma National Guard and an experienced Oklahoma military divorce attorney.

Alternatives to Military Divorce

Marital counseling is a useful tool for couples considering reconciliation in their marriage instead of seeking divorce. A unit chaplain, religious leader, or counselor may be able to assist you and your spouse resolve your marital problems. Even if you ultimately divorce, open communication about issues in your marriage may reduce the cost and time it takes to settle your divorce case.

An annulment is difficult to obtain in military divorce cases. It essential means you were never legally married. Military divorces in Oklahoma are governed by Oklahoma statutes, which require specific circumstances in order to find a marriage invalid.

No, you may seek a delay or stay in the proceedings to give you time to attempt reconciliation; however, the family law court will eventually grant your spouse a divorce, if he or she wants divorce.

Military Divorce Process

First and foremost, every attorney is bound by ethical rules and has the duty to do the following:

– keep your information confidential;

– Advise you based on Oklahoma law and their experience;

– Follow your decisions concerning major issues in your divorce;

– Give honest and intelligent legal advice on all aspects of your case, including the chance for success or failure on any issue; and

– promptly respond to requests for information

Yes, you can obtain a divorce in Oklahoma without an attorney; however, it is not advisable. You and your spouse will have to work out every issue of your divorce through open communication. You will be held to the same standard as attorneys in preparing and presenting all necessary documents and pleadings to seek a military divorce. You should consult with an Oklahoma military divorce attorney before exploring this option; it may cost you more time and money than hiring an experienced attorney.

The total cost of your divorce depends on a number of factors; however, the primary issues are your Oklahoma divorce attorney’s skill in presenting your position to the other side and the court in a convincing manner and how many issues you and your spouse can agree upon.

Speak to each Oklahoma divorce attorney you consider hiring and find out their retainer and their hourly fee. Additionally, what billing increments do they use? Our firm bills in one-tenths (1/10) of an hour; however, some attorney bill in one-fourth (1/4) of an hour, which some attorneys will bill you for fifteen minutes, even if you only spent two minutes on the phone with your divorce attorney.

The same initial steps for an Oklahoma divorce with non-military members applies to a military divorce in Oklahoma. The process starts with the filing of a Petition for Dissolution of Marriage. Once the divorce petition is filed in the appropriate state district court, the divorce procedure can begin. Although, Oklahoma military divorces may involve parties stationed on bases, the divorce case proceeds in state court.

The Summons in a divorce action is the formal notice of the Petitioner filing a divorce case and notifies the Respondent, other spouse, that he or she must file a Response within twenty (20) days of the Petition or may suffer default judgement in the military divorce. The summons must be served on the Respondent, unless he or she waives service by summons.

A service member, just like a civilian, must be personally served with divorce papers. Personal service may be difficult, if your spouse is deployed or overseas training. Military regulations for effective service must be complied with when your spouse is stationed on base. Your chosen Oklahoma military divorce attorney can assist you in effecting service on your military spouse.

Yes, the non-service member spouse seeking support should notify the service member’s chain of command in writing and request the applicable military support regulation is enforced.

Yes, once you have established jurisdiction for your military divorce in Oklahoma, you may hail the other party to court to be heard. Some issues must be resolved prior to the final divorce decree and cannot be reached by agreement of the parties. A common issue litigated in contested military divorces in Oklahoma is where children will live during the divorce proceedings. Both the service member and non-service member spouse may fight to have physical custody of their children during the divorce. The outcome of hearings prior to the final divorce are temporary orders, which can or will be changed in the final divorce decree or child custody order.

The Servicemembers Civil Relief Act (“SCRA”) protects service members from being forced to appear in court when it materially affects their service. The SCRA provides legal protections, including: stay or suspension of military divorce proceedings for ninety (90) days. The purpose of this protection is to allow service members to focus on their current mission and face divorce or child custody issues upon being released from deployment or combat duty. The SCRA requires default judgments, entered improperly against service members, to be overturned, including divorce and paternity actions.

However, the SCRA does not protect against criminal prosecution for failure to pay child support. Additionally, the SCRA does not delay proceedings indefinitely. In a 2019 decision the Oklahoma Supreme Court, in Kohler v. Chambers, 2019 OK 2, 435 P.3d 109 (Okla. 2019), held

the service qualifying for SCRA protection was strictly limited. It is important to speak to a qualified Oklahoma military divorce attorney to discuss, if your service will affords you an SCRA stay or not.

Yes, discovery in a divorce case, similar to other types of civil cases, allows each party to submit requests to the other party for information, admissions, or documents, which in theory allows both parties to learn more about the opposing party’s case and position in the divorce or child custody case. Discovery in a military divorce fosters open communication about assets, debts, and the other parties’ position in the case.

Discovery is an important tool that a skilled military divorce attorney can use to your benefit. The primary tools in discovery are interrogatories (questions to the other party); requests for admissions; requests for production (documents and other tangible evidence); and depositions (questioning the other party under oath).

In Oklahoma, most family law judges require the parties to participate in non-binding mediation prior to having a contested divorce or child custody trial. Mediation is a process where both parties present their side of the case, including custody, assets, finances, and every other issue to a neutral third party attorney, mediator, that gives advice on what he or she thinks is reasonable and/or what the trial judge would likely order. Often times being properly prepared for this step in the process will allow you and your Oklahoma divorce attorney to convince the mediator of your position and potentially the other party. The divorce or child custody case can be resolved, if the parties reach an agreement during mediation.

Yes, if your military divorce case goes to trial you can call any relevant witness, including serving him or her with a subpoena to testify, including your service member spouse’s commander.

Yes, pregnancy is not a bar to filing a military divorce case. Paternity and child support will be determined after the child is born; however, the presumption in Oklahoma is that any child born to a married woman is her husband’s child.

Divorce or child custody trials are the final hearing before the initial court. Both parties present evidence, witnesses, financial records, and even expert witnesses in some cases. The family law judge listens to both parties and will decide the outcome of all issues before the court, including: child custody, child support, alimony, division of assets, the marital home, and other issues. The non-prevailing party may seek review by appeal. Otherwise, the parties must draft the necessary documents to enforce the Judgement of the Court.

No, Oklahoma law requires any party seeking a divorce to prove they notified the other party of the divorce proceeding. A party may seek to provide notification by publication in a newspaper, if a spouse is unable to find or notify their spouse of the divorce. The divorce can be set aside, if one party lies about notifying their spouse of the divorce proceeding.

Benefits after a Military Divorce

The military offers Servicemembers’ Group Life Insurance (“SGLI”) and Veterans’ Group Life Insurance (“VGLI”) to service members, which allows up to $400,000 of coverage to be purchased through these two programs: SGLI and VGLI. Every service member is eligible for coverage, including: Army, Navy, Air Force, Marines, Coast Guard, active duty, Reservists, or National Guard. However, these programs are not mandatory and service members may opt out. It is important to seek orders concerning continued support in the divorce decree.

Yes; however, the Oklahoma divorce court must establish jurisdiction over the military pension prior to dividing the asset. Jurisdiction can be established in a number of ways: the military member’s consent by agreement; the military member filed the divorce petition; or the non-military member spouse will have to establish jurisdiction, if the service member spouse does not consent. In order to establish jurisdiction over the military pension you must file the divorce petition in the home state of the military member, i.e. the state listed on the service member’s Leave and Earnings Statement (“LES”).

The Uniform Services Former Spouses Protection Act (“USFSPA”) allows state courts to divide military retirement pay; just like state divorce courts have authority to divide civilian retirement. The general formula used is as follows:

Active duty service members, reservists, and national guardsmen have access to Tricare health services through the Military Health System (“MHS”). After being released from military service; Continued Health Care Benefits Program (“CHCBP”) is available for a period of time after Tricare’s expiration. A formerly covered spouse or service member may make premium payments and continue coverage for eighteen (18) months after coverage would otherwise end. This benefit is provided by the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). A former spouse may choose CHCBP or nonmilitary health insurance after coverage expires.

No, Oklahoma law governs all aspects of military divorce actions within Oklahoma, including support alimony. In order to receive spousal support, the dependent spouse must demonstrate he or she has a need for spousal support and his or her spouse has the ability to pay spousal support. The general grounds for establishing a need are rehabilitative purpose; inability to work; or completion of education. Oklahoma divorce courts generally only award spousal support for a limited period of time to allow the dependent spouse to become independent.

Child Custody in Military Divorce

Oklahoma law affords for two types of child custody: physical custody and legal custody. Legal child custody gives parents decision-making authority over a child’s health, education, welfare, and extracurricular activities. Physical child custody determines where the child will live and the parent that will supervise the child. Sole legal custody means one parent makes all decisions and advises the other parent. Sole physical custody means the child lives with one parent exclusively and sees the other parent during periods of child visitation. You should discuss the different types of custody with the Oklahoma military divorce attorney you trust with your case.

Military child custody cases are governed by Oklahoma law as are child support orders. Oklahoma has guidelines that establish child support. The amount of support is calculated based on each parent’s income, the amount of overnights the child spends with each parent, the child expenses paid for by each parent, including: child care and health care; and other support obligations. You may be required to pay more child support than the guideline calculation; however, you will not be allowed to pay less. You should consult with an Oklahoma child custody and divorce attorney about the applicable guidelines.

Yes, the fact you may be deployed is not by itself a bar to being awarded child custody over your children. Oklahoma family law dictates child custody shall be determined based on “the best interests of the child.” You can improve your chances of obtaining child custody by working with your Oklahoma family law attorney to develop a child care plan, including what you will do with your children during periods of training or deployment when you are unavailable.

Post military divorce rights

The service member spouse must complete a DD Form 1172 and have the children’s photographs taken at Personnel Support Detachment. The sponsoring parent can send the DD Form 1172 to the custodial parent, if the parents do not live in the same location.

Former spouses are entitled to legal assistance, if they meet the 20/20/20 rule and are not-remarried. The 20/20/20 rule means a military member has completed 20 years of credible service; the spouse has been married to the service member for 20 years and the periods overlap by at least 20 years.

Former spouses meeting the 20/20/15 rule meet the same criteria; however, the period of overlap is less than 20 years, but greater than 15 years. These former spouses may be entitled to full medical benefits, but should consult with an experienced Oklahoma military divorce attorney.

Yes, so long as a military dependent child has a military ID card, he or she will be eligible for military medical benefits until they are 18 years old or older, if a full-time student. Additionally, they will be entitled to commissary access, exchange privileges, and legal assistance.

CONCLUSION

Experience matters when you are facing divorce or child custody issues in Oklahoma. It is important to know the Oklahoma military divorce attorney you hire is dedicated to your cause and versed in military and Oklahoma divorce law. John Cannon, owner of CANNON & ASSOCIATES, is a currently serving Judge Advocate in the Oklahoma National Guard and an experienced Oklahoma military divorce attorney. He will personally represent you during your Oklahoma divorce 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 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.

Contact CANNON & ASSOCIATES today if you have been charged with DUI, AP, Aggravated DUI, DWI, or DUI under 21 in Oklahoma. CANNON & ASSOCIATES has an outstanding record of reaching the best possible outcome for hundreds of clients accused of the wide variety of criminal charges in Oklahoma, including DUI, evidenced by John receiving the highest possible AVVO rating – 10 (superb). Call our office at (405) 657-2323 for a free confidential consultation and case evaluation.