When Military And Matrimony Don’t Mix
The Daily Record
ANNAPOLIS, Md. (AP) — For those in the armed forces, divorce can be a whole new battleground.
“It’s ironic because these are trained fighters and they can find themselves in a battle they are not prepared for,” said attorney Cynthia Hawkins Clark.
Although military family law cases go through civilian courts, they often present a unique set of challenges with deployments, military pensions and child custody, said Clark and Paula J. Peters, who practice at the Law Offices of Paula J. Peters P.A. in Annapolis.
And with Fort Detrick, Fort Meade, Aberdeen Proving Ground, Andrews Air Force Base, the Naval Academy and other bases in Maryland, there are many military members locally who need legal assistance, Clark and Peters said.
“I can’t think of anything more satisfying,” Clark said. “It’s very hard not be invested in them. They are very good people.”
The challenges of representing service members vary depending on whether they are on active duty or retired, attorneys said.
For active service members, the key issues often involve the couple’s children. Long deployments mean long absences from that child’s life, which can make it hard to get joint or shared custody.
“It’s a hard road to hoe in terms of making a case for that, when they have been an absentee parent,” Clark said. “It’s a disservice. They serve our country but they don’t really get credit for the contributions they make as a parent.”
Increasingly, Clark said, she is dealing with cases in which two service members are divorcing and making arrangements for the child or children depending on when each parent is deployed.
“It can get very tricky,” Clark said. “The service requirement just generally imposes such hardships on these families, so it’s not atypical these arrangements run into trouble.”
Maryland judges are not always sympathetic to situations where former military spouses are far apart, since they look at it through their own parenting lens instead of a military one, Peters said.
“The rules are not set up to deal with that, really,” Peters said. “It is hard to get judges to be flexible.”
And if formerly married military spouses are living on opposite sides of the country — or world — there is the added complication of who should pay travel expenses related to custody or visitation.
Finally, laws vary from state to state, and with the frequent transfers that can accompany military life, it is not always clear which state is the child’s “home state” under the Uniform Child Custody and Jurisdiction Enforcement Act. Even when a home state is established, the courts there may decide it is better to defer to another state.
A move is underway to standardize custody rules for military families. The Uniform Law Commission approved language for a model Deployed Parents Custody and Visitation Act in July 2012. Under the model act, past deployment and “possible future” deployment cannot be used against a parent in a custody proceeding, although imminent deployment can be considered.
The model act also simplifies and expedites custody arrangements and prevents deployed service members from losing permanent custody without their consent.
The model has been enacted in at least two states and has been introduced in five others, according to the Uniform Law Commission’s website. However, it has yet to be introduced in Maryland.
Divorces involving retired service members are more like civilian divorce actions, but with added emphasis on division of military benefits and pensions, Clark said.
With eligibility for retirement after as few as 20 years in service, retired service members may still be dealing with custody and child support issues; however, they don’t face the same locational challenges and uncertainties that active-duty military face. Instead, property issues become more of an issue.
Ronald Voss of Voss Law LLC in Baltimore said civilian spouses of service members may been out of the workforce for years, or they may have given up job and educational opportunities — factors that courts use to divide property and award alimony and child support.
“If you have to travel with a military member, a lot of times that means sacrificing (your) career for the betterment of that service member,” Voss said. “The spouse hasn’t worked in several years and at the time of the divorce, they are unemployable.”
Voss said service members often hate to give up any portion of their military pensions, since they have to be in the service for 20 years before interest accrues on it.
“It’s a very valuable asset and it’s a struggle for them to give up part of it to a spouse, but it is considered marital property,” Voss said.
There can be problems post-judgment or -settlement, too. While state divorce laws generally apply to service members, the federal Uniformed Services Former Spouses Protection Act governs how military pension benefits can be calculated and divided, as well as the maximum that can be paid to a former spouse. And if, for example, a pension order is not written in the right language for the military payment system, it will not be accepted, Voss said.
And each branch of the military has its own separate guidelines for the support that can be provided to divorced spouses, said William Ferris of Krause & Ferris in Annapolis, who has been practicing in military family law for 35 years.
“None of those line up with what the state courts say, and what you need to know if you’re doing this type of law is the court’s decision trumps what the military has to say,” said Ferris, a graduate of the U.S. Naval Academy who served on active duty in the U.S. Navy for 11 years.
Divorcing service members, retired or active-duty, must also determine which state has jurisdiction over their divorce.
Maryland, for example, requires a one-year separation, with separate residences, for a no-fault divorce; and one of the spouses must reside or be stationed in Maryland. If a fault-based divorce is sought, and the grounds did not occur here, Maryland law requires a 12-month residency in the state before filing for divorce.
This can be an impediment for military families who were only temporarily assigned to posts in the state, are not from here or are about to be deployed.
“When you are getting a divorce, you want it to happen,” Clark said. “You don’t want to wait for deployment.”
Clark has had clients who have been deployed by the time their cases go to a hearing, which means the service member has to testify over the phone, which in turn requires extra levels of verification and makes testimony harder.
Complicating matters, service members may wait too long to bring in a lawyer, possibly out of fear of attorneys’ fees. They sometimes go as far in the litigation process as they can on their own — usually until the trial — in order to save money, Clark said.
“And that is just the worst possible time to engage counsel,” Clark said.
Even so, there is an upside to working with service members, the lawyers said.
Clark said she started actively growing her military family law practice when she noticed the best clients in her general family law practice were service members.
“The clients I would rate as No. 1 — being able to reasonably set expectations, following advice, cooperating in litigation — all of that seemed to line up with active service members and retired service members,” Clark said.
Plus, her father served in the U.S. Army and she had uncles in the other branches.
“I understand the sacrifices they make on a personal level,” Clark said. “It seemed to be a natural point of convergence.”
After Ferris graduated in 1978 from University of Baltimore School of Law, where he took classes while on active duty, he said it was only natural that fellow service members sought his legal advice.
“I’m very familiar with the military and I deal with people in the military all the time,” Ferris said. “They like to deal with people like me who understand the rules they have and the language they speak.”
Voss said that service members see their attorneys as authorities, like a higher-ranking official.
“I like representing military service members,” Voss said. “They are very detail-oriented they are very by-the-book. Their lives and careers are done by chain of command.”
(Copyright 2013 by The Associated Press. All Rights Reserved.)