Divorce and the military

Issue August 2010 By Gabriel Cheong, Esq.

The lives of military personnel are not their own any more. They serve their country and when they are needed they must respond. They may be relocated or deployed at a moment's notice. When a family is involved, the situation becomes even more difficult. When both people are members of the military and married, they will both receive a Notification of Selection for Relocation and be relocated together.

However, the real problem exists when the couple is divorced, they have children and one parent needs to be relocated. Divorce is already a difficult situation regardless of how amicable the separation may be without the added pressures of being in the military. Dividing personal property and assets is difficult, and may seem to be the most important part of getting a divorce. However, when it comes to dividing parenting time, the children in the divorce have the hardest time. How can the parents realistically share parenting time when one parent is in one place and the other parent has been relocated far away? Or when both parents are in the military and they are both subject for relocation at any moment, how can a shared parenting schedule realistically be implemented? The answer is that it cannot.

When a couple is not married, or one parent is no longer married to the other parent and both serve in the military, the military will not consider a joint relocation; therefore, one of the parents will have to get sole physical custody of the child and request that the child be allowed to relocate with them. The parents will have to go to court and make a case for what is in the best interest of the child. In civilian divorce proceedings, they must also make a case for whether the relocation is a real advantage to the parent that needs to leave.

In Yannas v. Frondistou-Yannas, 395 Mass. 704, 711, 481 N.E. 2d 1153 (1985), a non-military case about a mother wanting to relocate to Greece with her child, the Court sets the procedure for determining the "best interest" of the child in a removal case. The Supreme Judicial Court adopted New Jersey case law Cooper v. Cooper, 99 N.J. 42 (1984) at 53) to determine that "the determination of the child's best interests requires that the interests of the custodial parent be taken into account.'" Yannas, at 710; thus provides the "real advantage" test.

In a military case, the real advantage test, in a way, is already fulfilled because the parent does not have a choice but to relocate. The parents' attorneys will then have to make a case for why it would be in the best interest of the child to stay with one parent over the other parent. It is a good idea for the parties to have a guardian ad litem appointed to conduct an investigation and give the judge a recommendation. In a military situation, it just is never realistic to have a joint physical custody agreement because the living arrangement for one parent can change from one day to the next.

Needless to say, neither parent wants to give up their time with their children. Each parent may want equal time with their children, and in a perfect world, a joint custody arrangement would be part of the agreement. Though for a parent this may be ideal, for a child it can be extremely detrimental. Parents usually want to do what will work best for them in a divorce, while forgetting that the children are the ones who are going to be living in two different places. Literally moving every week and not having a set home can make a child feel that his or her life lacks stability. Not knowing where home is can also be detrimental to a child, as friends at school have one home and one bed while the child with the divorced parents is in a different place and different bed every other week. If the child leaves something at mom's house, he does not have it for a week while he is at dad's house. This kind of schedule for a child, although not ideal, can work if the parents live close by each other. The even bigger problem arises when the parents do not live close by or when their own schedules and living arrangements are due to change at any moment - the situation most military families live with.

For divorce attorneys with clients in the military, it is important to create an agreement about what would happen if one parent needs to be relocated or deployed. The agreement would include which parent would get physical custody and what the parenting schedule for the other parent would be like. The agreement should also include a provision about which parent will claim the child as a dependent for the benefit of receiving the allotment provided by the military for dependents. The military allotment is different from the tax credit people receive for dependents. The military provides a monthly allotment to its members for their dependents. It does not matter how many dependents a person has, the allotment amount remains the same.

Having a plan in place from the beginning that allows one parent sole physical custody and the other parent a parenting schedule can help give the child a sense of stability and normalcy even in the event of a relocation, because nothing would really change besides the child's primary place of residence. If the child is relocated with the primary custodial parent, then his visits with the other parent will most likely be just as his visits had been before: every other weekend or a summer vacation visit. However, the ideal is not always the most realistic choice, and more often than not parents end up in litigation. Divorce attorneys need to think about all contingencies that can affect military families when creating a separation agreement, such as relocation, money and even death. Military families should analyze what is best for their children and what plan will provide the most stability and normalcy for their children's lives when they already live with so much change.

Gabriel Cheong, Esq. is principal of Infinity Law Group based in Quincy. He concentrates his practice in family law and estate planning. He can be reached at (617) 273-5110. For more information, visit www.infinlaw.com.