Couples contemplating divorce often undergo a period of separation, during which they may draft separation agreements to outline various aspects of their lives. In some cases, marital separation is pursued instead of divorce for reasons such as health insurance coverage, religious beliefs, or eligibility for government benefits. However, this process is different for those within the military and their spouses, due to the intricacies of the Uniform Code of Military Justice (UCMJ), as well as other aspects of service.
Legal Separation in New Jersey
Before getting into how military spouses would separate in New Jersey, it is important to understand that there is no legal separation in the state. Civilians in New Jersey can separate by drawing up a separation agreement, also known as a Marriage Settlement Agreement (MSA), to outline various aspects of their separation. However, even separated couples are still considered legally married.
How Marital Separation Works
Generally, marital separation is used as a period for either preparing for the dissolution of a marriage or for reconciliation. Yet, this looks different for civilians and military members:
In Civilian Cases
In civilian divorces, separation agreements serve as blueprints for property distribution, debt handling, and child custody. Despite the separation, individuals remain legally married until a final divorce decree is issued. Civilian spouses may date others during separation without facing specific legal consequences, but the impact on divorce proceedings varies based on state laws.
In Military Cases
For military couples, marital separation involves additional complexities due to the Uniform Code of Military Justice (UCMJ). The UCMJ plays a crucial role in regulating the personal conduct of service members, affecting child custody, support, and property division.
UCMJ and Extra-Marital Conduct
The UCMJ, established in 1951, initially defined adultery and imposed penalties, including dishonorable discharge and confinement. In 2019, the UCMJ replaced “adultery” with “extra-marital sexual conduct,” broadening the scope to include same-sex relationships and various sexual activities. Penalties for such conduct remained unchanged.
Affirmative Defense of Legal Separation
The 2019 amendments introduced an affirmative defense of legal separation. To utilize this defense, both parties must be unmarried or legally separated when the sexual conduct occurs. Notably, informal self-declaration of legal separation or a written agreement is insufficient; a formal court order is required.
Defense of Mistake
Service members can assert the defense of mistake, requiring evidence of an honest and reasonable belief that the other party was unmarried or legally separated. The burden then shifts to the government to prove otherwise.
Considerations Before Prosecution
Before pursuing prosecution for extra-marital conduct, the government considers factors such as marital status, military rank, impact on duties, misuse of resources, continuation after orders to desist, flagrancy, notoriety, ongoing divorce proceedings, and effects on unit morale.
Separation of Military Couples in New Jersey: Filings and Proceedings
Because of the status of marital separation in New Jersey, the act of separating itself is allowable within the military. However, things like spousal support, alimony, and property and asset division are changed when one or both parties are in the military. Consider the following:
Filing Options
In New Jersey, a military member can file for divorce in the state where stationed, where the spouse resides, or where the military member claims residence. Courts accommodate active-duty constraints, allowing participation in hearings over the phone or staying proceedings until the service member’s availability.
However, the Servicemembers Civil Relief Act (SCRA) may impact separation and divorce proceedings should a military spouse be deployed or otherwise unavailable. This is due to the fact that military members may be unable to promptly respond to a divorce petition when deployed, especially on foreign soil. SCRA prevents courts from holding military personnel in contempt or from entering a default judgment in such circumstances.
Child Support and Custody
Child support rules vary by military branch, requiring court orders for wage garnishment. Leave and Earnings Statements determine support amounts, considering essential needs like housing and food. Custody decisions differ, with New Jersey imposing limits until 90 days post-deployment.
Pensions, Benefits, and Health Care
Military pensions acquired during marriage are marital assets, subject to division. In other words, it will be divided between both individuals, regardless of how long you have been married. On the other hand, any VA disability compensation is not subject to property division during separation or divorce. The Survivor Benefit Plan can be decided through court orders. Health care benefits hinge on marriage duration, with TRICARE coverage eligibility for spouses meeting specific criteria.
What is the 10/10 Rule?
Once a judge signs a divorce decree that involves military retirement pay division, the former spouse is entitled to a share of the payments received by the service member from the Department of Defense (DOD). The 10/10 Rule, administered by the Defense Finance and Accounting Service (DFAS), outlines whether these payments are sent directly to the former spouse or if the service member is responsible for sending them.
Criteria for Direct Payments
Direct payments are made if the service member and the former spouse meet the following criteria:
- At Least 10 Years of Marriage: The couple must have been married for at least 10 years.
- At Least 10 Years of Military Service Overlapping the Marriage: There must be an overlap of at least 10 years between the military service and the marriage.
What is the 20/20/20 Rule?
Former spouses may retain certain benefits if they meet the criteria of the 20/20/20 Rule:
- 20 Years of Marriage: The couple must have been married for at least 20 years.
- 20 Years of Military Service: The military spouse must have completed 20 years of military service.
- 20 Years of Overlap Between Marriage and Military Service: There must be an overlap of 20 years between the marriage and the military service.
Benefits Under the 20/20/20 Rule
Meeting all three parts of the 20/20/20 Rule allows the former spouse to retain benefits such as a military ID card, medical benefits through TRICARE, and access to commissaries. These benefits continue as long as the former spouse remains un-remarried.
Temporary Continuation with the 20/20/15 Rule
For those who meet the first two parts of the 20/20/20 Rule but only have 15 years of overlap between marriage and military service, the 20/20/15 Rule provides a temporary continuation of benefits, including a military ID card. This temporary continuation, while not as comprehensive, still offers valuable support to the non-military spouse.
Contact a NJ Divorce Attorney Today
Military divorces, especially concerning marital separation, involve intricate legal considerations influenced by the UCMJ and federal laws. Navigating these complexities requires a comprehensive understanding of state and military regulations. Seeking legal advice is paramount for military spouses contemplating divorce or facing marital separation challenges. For such assistance, contact the NJ divorce lawyers of Ziegler Law Group, LLC today by calling 973-533-1100 or through our website’s contact form. Whether you’re considering separation, divorce, or need clarity on New Jersey laws, our experienced attorneys are here to assist you.
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