Are There Special Considerations Involving A Divorce From A Member Of The Military?
When one or both spouses are serving in a branch of the military, divorce procedures in Kansas are slightly different. These changes will apply to any individual that is on active duty in any branch of the United States military, including the National Guard and Coast Guard. Members of the United States Public Health Service also fall under these provisions. The differences in the divorce involving an active military member are detailed below.
Filing For Divorce In Kansas
Normally, one spouse must have been a resident of Kansas for at least 60 days prior to filing for divorce. In the case of active service members, determining residence can be tricky. This is because active service members are often stationed at various places through the country and even, the world. Thus, a service member is deemed to be a “resident” if they intend to move back to Kansas after their service. As was the case in Perry v. Perry, where the court determined a service member can file for divorce in Kansas even though he or she is stationed in another state, so long as the intention to return to Kansas exists. However, this approach can be very inconvenient for service members that are stationed in Kansas but residents of another state. To help minimize instances where military family must wait to get divorce, Section 23-2703(a) makes an additional exception to its filing rule. A service member stationed in Kansas can file for divorce in Kansas no matter his or her true state of residence or how short of a time they have been stationed in the state.
Service Members Civil Relief Act Of 2003
In some instances, a service member may be granted a stay—meaning that court action is “paused”—while he or she is away on active duty. This is accomplished via the Service Members Civil Relief Act of 2003, 50 U.S.C. § 501 et seq. This federal law generally always an active service member to obtain a stay of proceedings upon proof of active service away from Kansas. However, Kansas courts have not directly addressed whether the act applies in all instances of divorce—particularly temporary custody orders. In re Marriage of Bradley, a service member attempted to challenge a temporary child custody order under the Act. However, the Kansas Supreme Court never got to that challenge, because the individual failed to comply with the Act’s filing requirements; he never provided the documentation to show he was on active duty. The court seemed to suggest the Act would be available to pause a temporary order, but until the court squarely answers that question, it is impossible to know.
Uniformed Services Former Spouses’ Protection Act
Congress has passed laws that dictate how states must treat military retirement benefits in the context of divorce. Unlike other laws dealing with military-member spouses, the Uniformed Services Former Spouses’ Protection Act also applies to retired service members. Under 10 U.S.C. § 1408(e)(1), a court can award up to 50% of a service member’s military member retirement pay to the ex-spouse. If child custody is awarded, an additional 15% of the pay is available. To be clear, this does not mean that the maximum award an ex-spouse can get is just that 50%. Instead, it simply means that any amount in excess of 50% must be paid by the military member via other funds. On the other side things, the Act does not guarantee a 50% share in the retirement pay. The pay will be treated like all martial property is treated in Kansas, meaning it will be divided in a way the court determines to be fair, e.g., an equitable distribution.
The Act also provides a convenient way for payment to an ex-spouse. The government will directly pay the ex-spouse, but only if they satisfy the 10/10 Rule. This rule states that the couple must have been married for at least a decade, during which the service member performed 10 years of service. As the court noted in re Marriage of Gurganus, it is important to keep the application of the 10/10 Rule in check. An ex-spouse can still be awarded up to 50% of military retirement pay when the rule is not met, but the ex-spouse will simply have to collect directly from the service member rather than directly from the government. Thus, the 10/10 Rule is generally just a matter of convenience. However, it can become vitally important when the service member has multiple obligations to other ex-spouses, children, or creditors: the ex-spouse that takes directly from the government under the 10/10 Rule has superior claim to that amount, while other ex-spouses must collect from what is leftover.
Two final considerations regarding military retirement pay should be discussed. When a service member is severally injured during service, he or she may be eligible for military disability benefits. However, the service member must choose between retirement pay and this disability. Most service members will choose military disability, because these benefits are taxed differently than retirement payments and result in more money being kept by the veteran. However, military disability is not covered by the Act and is not divisible in a divorce. In re Marriage of Bahr, the court noted that simply because these disability benefits are not divisible does not mean they cannot be considered in determining how to divide other property, though. Second, a veteran that is convicted of domestic assault or child abuse after becoming eligible for retirement pay is disqualified from receiving such benefits under 10 U.S.C. § 1408(h). Again, the 10/10 Rule is key here: an ex-spouse receiving directly from the government will continue to collect, while a non-10/10 Rule spouse will be entitled to the same amount, but will have to attempt to collect from the service member that is no longer receiving any of the payments.
When a spouse is in the military, the largely state-law based divorce becomes increasingly entangled with federal law. This can quickly lead an inexperienced attorney into trouble. An experienced attorney is capable of handling these complex issues and the interplay between Kansas and federal law. If you need the help of an experienced divorce and family law attorney in Johnson County, Kansas feel free to contact our office.
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