Military Divorce in New Jersey Guide [2021] - Online Divorce

Military Divorce in New Jersey

Divorce specialist Jamie Kurtz
Jamie Kurtz has been a practicing divorce lawyer since 2008. She received her Juris Doctorate from Southwestern Law School in Los Angeles in 2007. Ms. Kurtz was selected to Rising Stars for 2013 - 2016, 2019 - 2020, a peer designation awarded only to a select number of accomplished attorneys in each state. She also co-founded a law firm that specializes in uncontested divorce cases.

Divorce for military members in New Jersey is regulated by state and federal laws and local rules.

The primary military divorce rules are found in two essential documents: the Servicemembers’ Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act. Some of the issues are common for service members and civilians.

The following military divorce guide highlights the main aspects of the process.

Protection from military divorce proceedings in New Jersey

Military members on active duty are protected by federal laws from divorce while deployed to another location or overseas.

The SCRA contains rules according to which a service member has the right to postpone divorce proceedings for the period of their duty and two months afterward. However, a service member can waive this right to start their divorce case sooner.

Residency requirements

Either of the spouses must meet specific residency requirements to be able to obtain a divorce decree.

Any service member can file for divorce in New Jersey if they or their spouse is a bona fide resident or stationed in New Jersey. These rules apply to any divorce in the army, navy, air forces, and other military branches.

Serving an active duty spouse

In New Jersey, military divorce laws establish a specific procedure of serving divorce papers on an active-duty service member.

A civilian spouse divorcing a military member should remember that their military spouse has to receive divorce documents in person for the chosen New Jersey court to have jurisdiction over that spouse.

If the couple decides to have an uncontested divorce, this rule could be omitted on the condition that a service member signs a waiver affidavit.

Grounds for a military divorce in New Jersey

A married couple can obtain a military divorce in New Jersey for the same reasons as civil divorces are granted.

The most common one is a no-fault ground called “irreconcilable differences,” meaning that the spouses cannot save the marriage. This situation must have occurred six months before the filing.

Other fault-based grounds include:

  • adultery;
  • willful desertion for at least 12 months;
  • extreme cruelty;
  • separation for 18 months;
  • alcoholism and substance abuse;
  • imprisonment for 18 or more months;
  • deviant sexual behavior without other party’s consent;
  • mental illness with institutionalization for two years before the filing.

Property division

Property division is a central issue of any marriage dissolution process. In case spouses cannot decide who gets what in a settlement agreement, a judge will divide all family assets and debts at their discretion.

Marital property subject to division includes everything acquired by spouses after the date of their wedding. Separate property, which stays with the original owner, includes inheritance and all property purchased before the marriage if it has not commingled with marital property.

A spouse divorcing a soldier is also entitled to receive a share of their retirement benefits since they are also a part of the marital property.

There is no established formula in New Jersey about what percentage of military retirement pay the other spouse will get after divorce. The former spouse’s share cannot exceed 50% or 65% if it includes child support.

If the 10/10 rule applies (ten years of marriage, ten years of service, and ten years of overlap between them), the Defense Finance and Accounting Service will make direct retirement payments to the former spouse.

If the rule is not met, the former spouse will still receive part of the military pension but not directly from the DFAS.

Child custody and support

Family law matters such as child custody and support are of primary concern for families with minor children. If the parents have disputes about who should be a custodial parent, the court will decide it based on the child’s best interests.

New Jersey courts tend to award joint legal custody to ensure both parents’ equal participation in the child’s life.

Divorce in the military with children involves several unique issues connected to the deployments of a military parent. If a service member is a primary custodian and has been called to active duty, it does not mean that a child will stay with the civilian parent during this period.

The arrangements for such occasions should be included in a parenting plan that the spouses draft before the final hearing.

Both parents are also responsible for supporting their children financially regardless of their visitation schedule and relationship with the child. New Jersey courts use state guidelines and the Income Shares Model to determine the amount of support.

The formula set in guidelines is based on the parents’ combined income and the number of children. It also takes into account the time that a child spends with each parent.

A service member’s income for child support purposes, among other sources, includes basic pay, basic allowance for housing (BAH), and subsistence (BAS). Child support payments are terminated when a child turns 19, joins the military, marries, or dies.

However, if a child is incapacitated, the financial support continues even after their coming of age.

Spousal support

In a military divorce, spousal support can be ordered by a civil family court or established by a service member’s branch in the absence of the court order. New Jersey courts award several types of alimony: open or limited durational, reimbursement, and rehabilitative.

Typically, the duration of payments would not exceed the marriage length if it lasted less than 20 years.

The need for and the amount of alimony that a military spouse may receive after divorce is calculated based on each spouse’s gross income. In the case of a service member’s income, the court will look into their Leave and Earnings Statement, including all basic and additional pay.

The judge will additionally contemplate the following factors:

  • earning capacities of spouses;
  • age and health of the parties;
  • the standard of living during the marriage;
  • parental responsibilities;
  • the time necessary to acquire skills and education to find employment;
  • financial and non-financial contribution of each party to the family well-being;
  • tax consequences of the alimony award;
  • other relevant factors.

Filing procedure for military members

The divorce filing procedure for service members consists of several stages, most of which are identical to civilian marriage dissolution cases. Virtually all family matters are handled by civil courts that have specific rules in each state.

The first step every individual must make is to submit a Complaint for Divorce along with other required documents, the list of which is available on the county court’s website or obtained from a lawyer.

Each person initiating a marriage dissolution process (a petitioner) must pay a filing fee (approximately $300). If a petitioner is in a difficult financial situation, they can file a fee waiver.

Consequently, a judge can postpone the payment or waive it entirely, depending on the circumstances.

After one spouse has submitted the required forms, the other party must be served with a copy of the complaint and summons. If they are also in the military and on active duty, they must accept the papers in person.

If not, there is an option to send the documents by certified mail. The respondent must sign them and file an Appearance with the court. If they fail to do so, there will be a default final judgment.

If a couple decides to part amicably, they need to submit a settlement agreement that includes property division settlement, provisions about child custody and support, and alimony.

In this case, they will only attend a few court hearings, after which a judge will issue a divorce decree.

Rights and benefits of a military spouse after divorce

Service members and their families enjoy certain benefits, which can be prolonged even after the marriage has ended. Specific rights and privileges that a former military spouse has after divorce depend on several conditions.

Suppose a marriage lasted for 20 or more years, during which a military member also served for 20 years (the 20/20/20 rule). In that case, the military spouse entitlements include medical coverage, PE, and commissary benefits.

In case the overlap is less than 20 years but more than 15, the 20/20/15 rule comes into force. It provides one year of medical benefits under the Tricare plan and an option to switch to a three-year Continued Health Care Benefit Program (CHCBP).

Both rules (20/20/20 and 20/20/15) apply if a former spouse stays unmarried.

How we can help

Filing for divorce in the military can be a tricky task for those who decide to save money and proceed without an attorney. If you are willing to get an uncontested divorce but overwhelmed with the amount of information on how to handle it, use our professional help.

OnlineDivorce.com provides its clients with up-to-date military divorce papers that comply with the state requirements and are ready for instantaneous filing with the court.

Frequently Asked Questions

How long does a military divorce in New Jersey take?

Since there is no waiting period in New Jersey before a divorce can be granted, the length of a divorce largely depends on whether spouses can agree on critical terms. Amicable cases take up to 4 months, whereas contested ones are resolved in 12-18 months.

How much does a military divorce in New Jersey cost?

The cost of conflict cases where you need to hire a lawyer starts from $12,000. Uncontested self-represented cases are much cheaper – $300-$500 in filing fees plus additional motions and the process server’s fee ($25-$50).

Where to file a military divorce case in New Jersey?

A military divorce is filed to a county’s civil court where either a plaintiff or a respondent lives. Service members who reside in a state other than New Jersey but are stationed in New Jersey can file in a county adjacent to their base.

What makes military divorce in New Jersey different?

Military divorce in New Jersey differs from civilian divorce in several unique ways. They include specific rules applied to service members on active duty, such as the service method, the stay of proceedings, division of military pensions, and benefits.

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