Factors That Might Impact A Military Divorce
Adultery is a crime under the UCMJ. Oftentimes, it makes a lot of sense for a spouse to admit to adultery because there may be overwhelming evidence to prove the adultery. You certainly don't want a client to lie and then go before a judge and make the judge wonder what else the client is lying about. If that happens you could end up getting hammered in the divorce decree. You have a right to invoke your constitutional rights: your right to remain silent and your Fifth Amendment Rights to not answer any questions in discovery about adultery or domestic violence.
You want your attorney to be aware of the major impacts that an allegation of adultery could have on your career. Even if the command doesn't want to prosecute you in the military justice system, they could hit you with a letter of reprimand, which could lead to an administrative discharge. Then, your military career is over simply because you didn't invoke your right to not incriminate yourself.
Issues of domestic violence are also important in the military because there's the Lautenberg Amendment, which dictates that anyone who is convicted of a domestic violence charge, even if it is a misdemeanor, becomes unable to legally carry a firearm. At that point obviously the military member’s career in the military is over. If you are prevented by federal law from carrying a firearm, you're not going to be of much use to the military. In a military divorce, you want your attorney to know what the UCMJ is and what punitive articles are in the UCMJ that may not be in the civilian criminal justice system. You want your attorney to know what an Article 15 is and what the process is for an Article 15 and what are the effects on a military member’s career from an Article 15. You need your military attorney to know what a “LOR” and “LOC” stands for, and what the consequences of a letter of reprimand are versus the consequences of a letter of counseling. You need an attorney who knows what a PIF is and the consequences upon one’s career from having derogatory data in their personal information file.
If I'm representing a spouse, it's a major advantage to know which levers need to be pulled in order to put pressure on the military member. If I'm representing the military member, I know the pitfalls and the landmines that we're trying to avoid, as we go through the military divorce process.
Does Filing First For A Divorce Matter?
A lot of people think that being the plaintiff in a family law situation gives you an advantage because it means you're going to be able to testify first before the Judge. Perhaps what comes out first sticks in the judge's mind the best, but I don't know if I agree with that idea. It is just one consideration to take into account.
In many cases, I have seen a male spouse file for divorce and then that party was retaliated against by his spouse. In other case, I have seen the female spouse file first and then proceed to attempt to involve the military member’s command in every single action moving forward.
It is probably always a good practice as a military member to go to your command and warn them that your spouse has filed for divorce against you and may be attempting to make you look bad in the near future. A lot of military members look at divorce as just part of the job and an unfortunate part of military life. And you cannot be a commander in the military for longer than “one minute” and not have to deal with a contentious divorce or some aspect of a military member’s divorce proceedings.
What If I Am Overseas And Cannot Attend Hearings?
If you are serving overseas and cannot attend your divorce hearing, you would have your commander write a SCRA letter, indicating that you’re unable to participate in the divorce proceedings. Then, you're going to want your attorney to get the commander’s letter in front of the judge, or to file a special appearance requesting the stay, but notifying the court that you're going to contest jurisdiction. This comes up a lot when you have someone who’s going overseas and then the spouse wants to gain a tactical advantage while that military member is serving. In that situation, you want and need a stay of the proceedings under the Service members Civil Relief Act.
For example, let’s say a military couple is living in Texas. They have children there. The father is serving in Iraq for six months. The mother dis-enrolls the kids from school because she has a boyfriend in Alabama. She moves to Alabama, which is where her family is from. She files for divorce in Alabama (after maintaining residency for six months) and then proceeds to have her spouse served with a divorce in Alabama and he's never even lived in Alabama. There's no reason at all for Alabama to have jurisdiction. He would want to hire an Alabama attorney to request a stay of the proceedings and to file a motion to dismiss the action filed in Alabama. He would then probably want to try to get an attorney to file a divorce in Texas (which is where the children had lived for the last two or three years and where the marital home was when he left to go overseas).
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