This Blog piece focuses on New Jersey Military Divorce. NJ is currently is home to military personnel serving in the Army, Navy, Air Force, Marines and Coast Guard. Military service can be hard on families. One or both spouses’ service in the military can affect your New Jersey divorce, child support, or custody matter. Getting advice from a New Jersey attorney with experience in military divorce is crucial to resolving all of your alimony/spousal, child support and other related financial issues, as well as protecting your parental rights and custody and parenting time/visitation concerns.
A service member or spouse filing for divorce has a choice of states in which to file for divorce, including: 1. The state where the serviceperson is currently stationed, 2. The state where the spouse currently resides and 3. The state where the serviceperson claims residence
Establishment of Paternity
In the event paternity is not acknowledged, it will have to be legally established. In order for a child to be enrolled in TRICARE, the military requires proof that a court has determined paternity, that the child is dependent upon the member for more than 50 percent of his or her support, or that the military member has signed a voluntary acknowledgment of paternity. If the service member does not voluntarily acknowledge paternity, it may be necessary for them to return to the United States for genetic testing to be done if they are abroad on active duty or serving on a naval ship at sea. Establishing paternity protects your legal rights to your children. Once paternity is established, both parents – mother and father – have custody rights. The child then has a chance to develop a relationship with both parents and establish a sense of identity and connection with both sides of their family.
Child Custody and Parenting Time
A new law enacted in 2013 safeguards the parenting rights for deployed military personnel. In New Jersey, Courts are prevented from entering final custody orders or permanently changing custody and/or parenting time until 90 days past the end of a military personnel’s deployment. The law also provides that the court when making a determination regarding child custody or parenting time, will not consider the absence, or potential absence, of a service member parent by reason of deployment with the military as a factor in determining the best interests of the child.
Alimony and Child Support
Although the Air Force, Army, Marine Corps, and Navy all have different guidelines for payment of alimony and child support, if the service member does not voluntarily provide support, or efforts to resolve the issue with their Commanding Officer are unsuccessful, it will be necessary to make the appropriate application to the Court. To accurately calculate income available for support, an attorney must understand the service member’s Leave and Earnings Statement, as well as know how to estimate an appropriate amount for additional allotments for items such as food and housing, some of which are non-taxable. The Defense Finance and Accounting Service (DFAS) will process the income withholding in conjunction with the New Jersey Family Support Payment Center/local probation department.
Pensions and Benefits
Military pensions are those resulting from service in the Army, Navy, Air Force, Marine Corps, or Coast Guard. The Uniformed Services Former Spouses’ Protection Act allows states to treat a service member’s military pension accrued during marriage as a marital asset. In New Jersey, military retirement pay may be subject to equitable distribution. Military retirement pay is different than a civilian pension or other traditional retirement accounts. It is important to address the service member’s military retirement pay, as well as their choice of beneficiaries in a Survivor Benefit Plan. Even if the military pension is currently in pay status, it is important to address the tax implications of a military pension. Currently, in New Jersey, military pensions and survivor benefit payments are not subject to the payment of New Jersey gross income taxes.[1]
Stay of Proceedings
The Servicemembers Civil Relief Act allows a court to “stay” (delay) the Court proceeding if the service member is prevented from participating fully in the proceedings. It has been my experience that Court are understanding if the service member is serving overseas and sometimes grant permission for the active duty service member to appear by telephone under some circumstances. You should speak with a military divorce attorney if you have any concerns about whether or not you or your spouse should pursue divorce, child support, or custody issues while the service member is on active duty.
Each case is unique. It is important to speak with a New Jersey family law attorney experienced in military who can provide guidance as to your FREE consultation.
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