Military Divorce in New York
There are only three ways that New York Courts have the jurisdiction over the divorce of a service member. Courts require jurisdiction over the parties and subject matter of all actions. In its simplest form, jurisdiction is the right and authority of the court to act in given situations When service members are involved, jurisdiction over the parties must be determined before a divorce action is commenced to be certain that the court has the power to divide military pension/retired pay. This requires that the service member is:
- A legal resident of New York or
- Residing in the state for reasons other than military assignment or
- Consents to the jurisdiction of the New York courts over the issue of division of retired pay in the divorce action.
If none of these apply, the New York court had no authority to divide the service member’s pension as part of the divorce action. The power of state courts derives from the Uniformed Services Former Spouses Protection Act.
Wherever a service member is based, their state of domicile has jurisdiction over the divorce action as far as division of military pensions/retired pay. If the divorce is happening in New York, it must be made clear from the beginning not just that there is consent for New York courts to hear the divorce, but that the service member consents to division of pension/retired pay by the New York court. Because the grant of division of the right for division of pension granted by federal law, if the NY Court does not have jurisdiction, the military will not recognize the divorce judgment on the issue of division of pension.
JAG and Command
Though JAG may be able to answer some questions and review documents, but JAG does not represent in divorce actions. JAG can also review certain orders to determine if they comply with the necessary military requirements. If your private attorney does not know this already, you may want to change counsel.
Command may become involved in minor ways, to make certain the rules are followed:
- Your spouse has no right to be in military housing if you are not living there, and command must be advised. Command will allow your spouse 30 days to vacate and can compel her to vacate if you are not living there. You do not have that right or power. Oddly, if you are living there, but command believes a separation is necessary, the service member will be the one ordered out of housing, not the spouse.
- You have no right to use self-help to get your spouse’s military ID, though Command does have that power.
- Command can, and will, compel a service member to pay child and spousal support without the need of any Court order, but for the Air Force that does not follow this standard.
- Self-help is generally a bad thing and will create trouble for all. Avoid it.
Servicemembers Civil Relief Act (SCRA)
The Servicemember’s Civil Relief Act offers those in the military service protection by putting a “stay” into place to prevent the action from moving forward until you are able to participate in the action because of deployment or base. To put the SCRA into play, the service member, or counsel, must make a formal request of the court to stay the action, put the action on hold, on the basis of the rights under the SCRA. The length of time the action is put on hold, or can remain on hold is dependent upon the specific circumstances. The rule of thumb is a 90 day stay, but it can be stayed for much longer when necessary and with proper communication with the court.
The nature of these actions is quite different from the typical divorce because the service member has various other duties and obligations to the service and to command. Another quirk of this set of laws and rules is that military pension can be lost, as can a military career, for domestic violence conviction. You need representation that knows all of this, and far more. With luck, you also want someone who can establish a working relationship with your Commander if it becomes necessary.
If you are a military service member or a spouse of a military service member and wish to discuss divorce, custody or child support issues, Contact Diana, or call at 315-565-2760.