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Military Divorces for Returning Soldiers

Clarkston Legal Jan. 13, 2012

As our soldiers return from war in the Middle East, many cases of post traumatic stress disorder are becoming manifest. Often, the PTSD shatters an already fragile marriage, strained to the break point from years long separation.

Many soldiers, having survived the war, come home only to be placed in a trick bag: struggling with PTSD while their marriage falls apart. To complicate things even more, there are special rules that apply to military divorces.

The psychology of both partners to the marriage is affected by the homecoming. The state-side spouse absorbed 100% responsibility for managing household tasks, child rearing, education, and all other domestic issues. A sense of independence may have seeped into the spouse’s “mindset” that often requires an adjustment when the other partner returns from war.

For his part, the returning soldier needs time and some space to decompress from war; especially if the individual is not only returning state-side, but also discharging from the armed forces.

If the soldier’s deployment was for several years, a spouse may have developed an “interim relationship” which must now be dissolved if the marriage is going to survive. Many do not.

The Servicemembers Civil Relief Act (SCRA) [formerly known as the Soldiers’ and Sailors’ Civil Relief Act] is a federal statute that governs issues of defaulted servicemembers and the related stay of proceedings in divorce actions. One feature of SCRA is that divorcing servicemembers are entitled to have the judge appoint them an attorney in the family court. Interestingly, however, the statute is silent as to the scope of the appointed attorney’s duties and her right to compensation for services rendered.

In a military divorce, support is also governed by federal regulations; each branch of the armed services has promulgated policies in the form of regulations that require the servicemember to provide adequate support for family members. To calculate support, the servicemember’s “leave and earnings statement” must be obtained and deciphered.

To enforce a support order, the support payee must turn to the Defense Finance and Accounting Service. The DFAS website has references to garnishment resources and information on designated agents.

Custody issues are resolved, for now, in accord with the state laws governing this issue within a divorce proceeding. Many states have specific provisions within their custody statutes that deal with a servicemember.

Congress, however, has been considering various amendments to SCRA that would federalize custody issues arising within military divorces. The ABA has prepared a “white paper” on the subject.