Military Divorce
As a proud United States Air Force veteran, I understand the legal intricacies that you will face as an active duty service member during your divorce or child custody case. Central Florida is home to many military stations yet the Courts are not familiar with the unique issues that come up during these cases. For instance, military members are required to move around to different locations every few years, and that will affect one parties time-sharing with their children. All of these issues need to be resolved in your court case so that you do not have to keep coming back to court and fix it. Please read further about the specific issues you need to know about in your case and please contact our firm to discuss.
Florida has jurisdiction over your case, if you engaged in sexual intercourse and as a result a baby was born. Florida also have jurisdiction over your case if this was the last state and county in which you and your wife last lived together and intended to be married. This applies even though one spouse may have moved to another jurisdiction or country.
FS 48.193 subjects certain persons, whether or not a resident of Florida to the jurisdiction of Florida courts if the do certain acts either personally or through an agent in Florida. In family law matters:
(e) With respect to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state at the time of the commencement of the action, or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not.
(h) With respect to a proceeding for paternity, engaging in the act of sexual intercourse within this state with respect to which a child may have been conceived.
(4) If the defendant in his pleadings demands affirmative relief on causes of action unrelated to the transaction forming the basis of the plaintiff’s claim, the defendant shall thereafter in that action be subject to the jurisdiction of the court for any cause of action, regardless of its basis, which the plaintiff by amendment assert against the defendant.
The long-arm statute has been construed to require the respondent’s residence to proximately precede commencement of the action, and that proximity is to be determined in light of the totality of the circumstances. Garrett v. Garrett, 652 So. 2d 378 (Fla 1 DCA 1995, approved 668 So. 2d 991, Shammay v. Shammay, 491 So. 2d 284 (Fla. 3 DCA, 1986).
When a military family moves out of the state of Florida, one spouse, after separation, may not return to Florida and thus obtain personal jurisdiction over the other spouse based on the “prior residence” section of the long arm statute. When the military family moves from Florida, normally they have abandoned Florida as their state of residence and each spouse loses the protection of the long arm statute. Garret v. Garret, 668 So. 2d 991 (Fla. 1996).
If your Spouse or father or mother of the child in a custody case PCS’d to another country, then the Hague Convention laws will apply.
Not many attorneys regularly use the Hague Convention. It is known as the Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The convention is an international treaty and was adopted at the Hague in 1965 and became effective February 10, 1969. The text of the treaty is reprinted at 28 U.S.C.A. Fed. R. Civ. P. 4 (Supp. 1985). Not all countries as signatories to the treaty.
Under FS 48. 194 (West, 1994) service of process on persons outside the United States may be required to conform to the requirements of the Hague Convention. Since the Hague Convention is an international treaty, it is the supreme law of the land and “trumps” procedural rules with respect to service of process. Macivor vs. Volvo Penta of America 471 So. 2d 187, (Fla. 3 DCA 1985), Semet, Lickstein, Morgonstern, et. al vs. Sawada, 643 So. 2d 1188, (Fla. 3 DCA 1994). The documents will have to be translated into German, Japanese, Italian, or other appropriate native language, even if the respondent speaks none of these. Our law firm has experience in these matters and professionals who can translate these documents to accord with the law.
Distributing a Military Pension
Surprisingly, many practitioners are not aware of the value of a military pension after twenty years or more of service. Typically, it is the most valuable asset in a long term military marriage. According to recent pay tables, an E-6 (Petty Officer First Class, Staff Sgt, Tech Sgt.)with 20 years of military service will receive about $1,566.00 per month in taxable retirement benefits, and an 0-6 (Captain, Colonel) will receive about $6,099.00 per month. Assuming the parties are 45 years old at retirement and assuming a life expectancy of another 35 years, one half of the value of the pension in the enlisted case is about $329,000.00 and $1,280,790.00, in the 0-6 case, respectively, not reduced to present value. Thus failure to properly distribute the military pension or receive proper consideration for waiving the same is a serious error that cannot be corrected after final judgment, in the great majority of cases. In Florida, pursuant to FS 61.076 (1988) all vested and non-vested pensions or retirement benefits are marital property and must be considered in the equitable distribution scheme in court.
Child Custody Issues (Time-Sharing)
When dealing with children born during the marriage, or in a paternity case, you must know how the courts deal with these issues. In Florida it is mandatory to attend mediation and try to come up with a settlement agreement before the court will set your case for a trial. In this settlement agreement, it is required that it include a Parenting Plan that governs the time-sharing that each party will have with the child or children. Many lawyers not familiar with military issues will simply direct their clients to agree on a parenting plan based on the present situation of the parties.
Then, shortly after the case is over, one party will receive orders to move to another state or another country making the parenting plan that they worked so hard to negotiate unworkable. Then you have to spend additional attorney fees to create a new parenting plan. These considerations, with an experienced practitioner on your side, can be negotiated on the front end, so that you can handle all of your issues at once. A good parenting plan will have a long distance parenting plan included in the event one party moves more then 50 miles from their original residence. At this point, child support issues will have to be dealt with along with travel costs. That is why it is imperative to have an attorney like us on your side, who understands these issues.
Confidentiality in Military Divorces
Whether you are a DOD employee, an enlisted service member, or an officer, you know the political sensibilities that are present in your career and how this can affect your career progression. Florida is a state that has a broad open records law. This means in your divorce or child custody case, whatever allegations are made against you whether truthful or not will be part of the public record and anyone can view this. These allegations can unfortunately hurt your career, and affect your security clearance. This is exacerbated when a vindictive party uses these unfounded allegations (lies) to gain leverage in their case, mostly involving children. It is important to note that Florida is a “no fault” jurisdiction and anyone can be divorced for any reason. Therefore, many times these allegations are not even relevant in dissolution proceedings, but the mere presence of the allegations can hurt your security clearance. This distinction is important to realize and our firm aggressively fights for you in the courts to keep the appropriate records sealed and away from the public record so that the mere existence of lies in court papers does not affect your career in any way shape or form. Being cognizant of this issue in military cases is important when selecting your attorney. Call us now for a initial consultation.
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Orlando FL 32801
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email: mike@macklawpa.com
phone: 407-926-6613
fax: 407-378-6242