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.
If you need the help of an experienced divorce and family law attorney in Johnson County, Kansas, feel free to contact the experienced attorneys at Roth Davies.