ARE THERE SPECIAL CONSIDERATIONS INVOLVING A DIVORCE FROM A MEMBER OF THE MILITARY?

Divorce procedures in Kansas differ slightly when one or both of the spouses is serving in a branch of the military. The differences apply to any person that is on active duty in any branch of the United States military, including the National Guard and Coast Guard. These provisions also cover members of the United States Public Health Service. Below is an overview of the differences in the divorce procedure involving an active military member.

Filing for Divorce in Kansas:   In the case of active service members, determining residence can be difficult because active service members are often stationed at different places around the country and the world. Normally to file for divorce in Kansas, one spouse must have been a resident of Kansas for at least 60 days prior to filing. An active service member is considered a resident of Kansas if he or she intends to move back to Kansas after their service. This was the case in Perry v. Perry, where the court held that 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 difficult for service members that are stationed in Kansas but residents of another state. Section 23-2703(b) creates an exception to its filing rule to keep military families from waiting to get divorced. Under Section 23-2703(b), an active service member stationed in Kansas may file for divorce in Kansas no matter how long they have been stationed in the state or his or her true state of residence.

Service Members Civil Relief Act of 2003:   Sometimes, the court may “pause” proceedings, by granting a stay, while a service member is away on active duty. This is done under federal law with the Service Members Civil Relief Act of 2003, 50 U.S.C.A. § 3902(2). This law almost always allows an active service member to obtain a stay of proceedings if the service member can provide proof of active service away from Kansas. However, it has not been decided by Kansas courts whether the act applies in all matters of divorce, specifically temporary custody orders. For example, in In re Marriage of Bradley, a service member attempted to challenge a temporary child custody order under the Act. However, the court never decided the issue because the husband failed to provide the document to show he was on active duty outside of Kansas, thus failing to meet the requirements of the Act. Nonetheless, the court did seem to suggest that had he provided the document, the Act could have been used to pause the temporary order. Until the court squarely answers the question, it is impossible to determine what the answer will be.

Uniformed Services Former Spouses’ Protection Act:   In the context of divorce, Congress has passed numerous laws that dictate how states must treat military retirement benefits. Most laws deal with active military-member spouses, but the Uniformed Services Former Spouses’ Protection Act also applies to retired service members. Under statute, 10 U.S.C. § 1408(e)(1), courts are allowed to award up to 50% of a service member’s military member retirement pay to the ex-spouse. However, if there is an award of child custody, an additional 15% of the pay is made available. This does not mean that the maximum award is 50% or that an award of 50% is even guaranteed. Any amount that is awarded in excess of 50% must be paid by the military member through other funds. Also, the pay is treated like any other marital property in Kansas, meaning that it will be divided fairly, as determined by the court.

The Act also allows for convenient payment to an ex-spouse by having the government directly pay the ex-spouse. However, the ex-spouses must pass the 10/10 Rule. The 10/10 Rule requires that the couple was married for at least a decade and that the service member performed 10 years of service during that time. As the court noted in in re Marriage of Gurganus, it is important to keep the application of the 10/10 Rule straight. In circumstances where the 10/10 Rule is not met, the ex-spouse can still be awarded up to 50% of military retirement pay, but the money will have to be collected directly from the service member rather than from the government. Essentially this means that the only real applicability of the 10/10 Rule is convenience of payment. However, under certain circumstances, the 10/10 Rule could have a significant impact on the ex-spouse. In the case where the service member has obligations to other ex-spouses, children, or creditors, the spouse that receives the money directly from the government under the 10/10 Rule will have superior claim to the money, while the other ex-spouses must collect their payment from the money that is left.

Further, when a service member is severally injured during service, he or she may be eligible for military disability benefits. The service member must choose between retirement pay and disability benefits. Most service members will choose the military disability pay because those benefits are taxed differently than retirement benefits, and it generally results in more money being kept for the veteran. Military disability benefits are not divisible in a divorce and are not covered by the Act. However, as the court noted in in re Marriage of Bahr, just because the disability benefits are not divisible does not mean they cannot be considered when determining how to divide other property.

In addition, a veteran that is convicted of domestic assault or child abuse after becoming eligible for retirement pay is disqualified from receiving those benefits under 10 U.S.C. § 1408(h). However, if an ex-spouse received those benefits under the 10/10 Rule, that spouse will continue to collect the benefits directly from the government. A non-10/10 Rule spouse will still be entitled to the same amount, but they will have to attempt to collect the money from the service member who is no longer receiving any of the payments.

When a spouse is in the military, divorce becomes increasingly entangled with federal law, whereas normally it is largely a state-law based issue. This can quickly lead an inexperienced attorney into trouble. An experienced attorney is capable of handling these complex issues and the interplay between Kansas state law and federal law.

May a service member be granted a stay while he or she is away on active duty?

(In re Marriage of Bradley, 137 P.3d 1030 (Kan. 2006).)

The issue in this case is whether a service member may be granted a stay while he or she is away on active duty. At any stage before final judgment in a civil action or proceeding in which a service member described in subsection (a) is a party, the court may on its own motion and shall, upon application by the service member, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met.

In this case, a service member and his wife were married in 2003 and had their son later that same year. The service member filed a petition for divorce in May 2005 requesting sole custody of their child. The service member also filed a motion for temporary orders, and temporary orders were finalized by the court and the parties in June 2005. In the temporary order, the service member was granted sole legal custody of the child, with the child residing with the service member’s mother. The service member’s wife filed a motion to modify the temporary order in September 2005, alleging that she did not have counsel at the time the order was signed and did not fully understand what she was agreeing to. The service member sought a stay of the proceedings under the Service Members Civil Relief Act. The district court held that the Act did not apply to the temporary order. The service member requested an interlocutory appeal to determine whether the Act applies in the circumstances.

At any stage before final judgment in a civil action or proceeding in which a service member described in subsection (a) is a party, the court may on its own motion and shall, upon application by the service member, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met. Paragraph 2 essentially states that the service member must present some documentation establishing that he or she is away on active duty. In this case, the service member failed to provide supporting documents to establish that he actually was away on active duty. Therefore, the court could not consider whether or not to grant a stay under the Act.

The Supreme Court of Kansas affirmed the decision of the lower court, finding that the service member failed to file the proper documents to satisfy document requirements for obtaining a stay under the federal Service Members Civil Relief Act. However, the Supreme Court of Kansas did not address whether, had the service member filed the correct documents, a stay granted under the Act would apply in the situation of modifying a temporary custody order. The court implied that the Act likely would cover modification of a temporary custody order, but it cannot be stated with any degree of certainty until the court addresses the issue in future.

Can a service member file for divorce in Kansas even though he or she is stationed in another state?

(Perry v. Perry, 623 P.2d 513 (Kan. Ct. App. 1981))

The issue in this case is whether a service member can file for divorce in Kansas even though he or she is stationed in another state. 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 move back to Kansas after his or her service exists.

In this case, a service member was a resident of Kansas when he joined the Navy in 1955 and was continuously in service at the point when he filed for divorce in Kansas. The service member was awarded a default divorce in November 1978 because his wife was personally served in Virginia but never appeared in the Kansas suit. The divorce decree included provisions for child custody, child support, property division, and alimony. In January 1979, the wife filed a motion to set aside the judgment in part because the service member was not a resident of Kansas when he filed the petition. The trial court overruled the motion to set aside the judgment, and the wife timely filed an appeal.

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 move back to Kansas after his or her service exists. Under Kansas law, in order to file for divorce, one must be an actual resident of the state for sixty days preceding the filing of the petition. In Kansas, servicemen may retain the residence from which they entered service no matter how long they are physically away, so long as there is no intent to change. The burden of proving a change in one’s residence is upon the one alleging the change in residence. In this case, the trial court found the wife failed to meet her burden of showing the service member had abandoned his Kansas residence and changed to a new residency. In fact, the court was persuaded by the evidence showing the service member’s intent was to return to Kansas. Some of this evidence included the service member’s claim to Kansas as his residence on forms when reenlisting, voting absentee in Kansas as late as 1972 and never voting elsewhere, and continuously carrying a Kansas driver’s license over the years. The wife failed to present any evidence to contradict these facts at trial, thus failing to meet her burden to prove a change of residency.

The Court of Appeals of Kansas held that the service member’s residence was still Kansas since he had intention to return there after completing his service. The wife failed to provide any evidence that established a change of residency, and the evidence on the record demonstrated that the service member was in fact a resident of Kansas.Therefore, the service member met the criteria of the statute, requiring that one be a resident of Kansas for at least sixty days prior to filing a petition for divorce.

Can an ex-spouse still be awarded up to 50% of military retirement pay when the 10/10 Rule is not met?

(In re Marriage of Gurganus, 124 P.3d 92 (Kan. Ct. App. 2005).)

The issue in this case is whether an ex-spouse can still be awarded up to 50% of military retirement pay when the 10/10 Rule is not met. 10 U.S.C. § 1408(d)(2) does not prevent a party from agreeing in a separation agreement to pay an ex-spouse a portion of his or her military retirement pay; it merely requires that if not married for 10 years, the retiree must make the payment directly to the ex-spouse, rather than having the government withhold the money and make payments.

In this case, the service member and his ex-wife were married in 1987. The ex-wife filed for divorce in 1996, and the divorce was finalized by the court in 1997. As part of the divorce decree, one-half of the service member’s monthly military retirement pay was withheld by the government and paid directly to the ex-wife. In 2004, the service member filed a motion to terminate maintenance payments from his military retirement benefits. He also requested reimbursement for overpayment from military retirement in lieu of spousal maintenance. The service member alleged that his ex-wife was not entitled to spousal maintenance because military retirement benefits are not considered part of marital property unless the parties had been married for at least ten years. The trial court found that the income withholding order for the military retirement pay should not have been filed, and instead ordered the service member to pay one-half of his military retirement pay directly to his ex-wife, finding that the retirement benefits were marital property. The service member filed a timely notice of appeal.

10 U.S.C. § 1408(d)(2) does not prevent a party from agreeing in a separation agreement to pay an ex-spouse a portion of his or her military retirement pay; it merely requires that if not married for 10 years, the retiree must make the payment directly to the ex-spouse, rather than having the government withhold the money and make payments. Prior to this case, Kansas courts had never considered whether military pay could be split with an ex-spouse in a divorce proceeding. However, other courts have interpreted 10 U.S.C. § 1408(d)(2) as only preventing direct payments from the military if the couple was not married for at least ten years. The statute does not prohibit a couple from contracting to pay an ex-spouse a percentage of the military retirement pay. If the service member agrees to the payment, then he must make the payments to the ex-spouse himself, rather than having the government withhold the money and make the payments.

The Court of Appeals of Kansas affirmed in part and reversed in part the decision of the lower court. The court held that the service member could pay his ex-wife one-half of his military retirement pay, even if the couple had not been married for at least ten years, but the service member must pay the ex-wife himself if the couple had not been married for ten years. The court reversed and remanded the issue of what the military retirement pay was, finding that the military retirement pay was spousal maintenance, rather than marital property.