Kevin J. Waite, P.C. | Attorney Blogs

Military Divorces and Custody Cases

North Idaho Attorney Kevin J. Waite, P.C. on Tuesday, November 21, 2017


The military service of either or both parties to a divorce, child custody case, or child support case adds an overlay of issues and procedures to consider. It is usually current military service that brings these considerations to the fore, but even cases involving past military service sometimes raise issues such as the appropriate division of a military retirement.

One of the first issues to consider in any new or reopened case is the Servicemembers Civil Relief Act, 50 U.S.C 3901 et seq. Among the protections provided by the Act are a barrier in the path of a default judgment being taken against the servicemember and a stay of the litigation on behalf of the servicemember. It is important to note that these protections are not absolute. There is a procedure for obtaining a default judgment against a servicemember under the right circumstances. There is a fairly technical procedure for seeking a stay, and a standard and evidentiary requirement that the servicemember must meet. There is a great misunderstanding among attorneys and judges on these issues.

Even where a stay is granted, there are exceptions. For example, the other parent may nonetheless obtain a temporary order for child support. There are cases going back to the early 1940's on some of these issues, interpreting the original, World War II era version of the Act, and indicating that although the Act was intended to benefit military servicemembers it also involves a balancing of rights and obligations and was intended to be a shield rather than a sword.

Military servicemembers have the ability to retain formal residency in a state in which residence has been established, while stationed at various posts around the United States or abroad. Thus, in a case involving a military servicemember, the analysis for jurisdiction and residence can be quite different from such an analysis in a non-military case. A servicemember and spouse who have been away from Kootenai County for years may be pleased (or displeased) to learn that Idaho and Kootenai County are the appropriate jurisdiction and venue for their case.

Federal law generally allows the states to apply the law of the state regarding most family law issues, such as custody, child support, the division of community property, and debts in cases involving military servicemembers. However, military cases can present complicated facts relating to the computation of income (in light of the various allowances that are usually components of military pay). The division of military retirement accounts involves a complex intertwining of federal and state law and military classification of the servicemember's compensation. The extent to which years of marriage overlap military service affects not only the division of military retirement pay but also may determine or affect other benefits as well.

This blog, like all other blogs, should be treated as a general discussion and not as legal advice for any specific situation.