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Dimitry K., Esq.
Dimitry K., Esq., Attorney
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Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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Hello, I am spouse of a U.S. Diplomat, listed officially as

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Hello, I am spouse of a U.S. Diplomat, listed officially as a U.S. State Dept. Family Member, under government orders. We are currently posted in south america.

I will be leaving post soon on "Voluntary Separate Maintenance Allowance (VSMA) – When an employee requests SMA for special needs or hardship prior to or after arrival at posts for reasons including but not limited to career, health, educational, or family considerations for the spouse or domestic partner, children or other family member. (DSSR 262.2)".

Regulation 264.2 states:
"Voluntary SMA (VSMA) - Based on Special Needs or Hardship of the Employee (interim eff. 7/5/2009 TL:SR 711; final eff. 8/30/2009 TL:SR 715)

a. An SMA application based on the needs or hardship of the employee should include in box 18 of SF-1190 a statement from the employee certifying the circumstances of special need or hardship and stating that such circumstances do not:

(1) include legal separation (see Section 263.3a) between employee and spouse or separation occurring through a divorce decree, whether limited, interlocutory, or final; or

(2) include dissolution (see Section 263.3b) of an employee's domestic partnership; or

(3) involve a child whose legal custody is vested, in whole or in part, in a person other than the employee or the employee's current spouse or domestic partner. When the employee has joint legal custody, a statement must include that child will not reside with the other custodial party; or

(4) include a child, brother or sister, 18 years of age or over (see Section 262.2). If the child will be attending secondary school beyond age 18, the employee when applying for VSMA must certify that VSMA will be terminated within three months from the day the child leaves the secondary school.

My spouse, the officer, claims such separation will not lead to divorce. However, I am not so sure.

Our 4-year-old son will fly with me privately, no VSMA, to our state of residency, California. We will stay with my in-laws.

My question is, at this point, do my wife and I need to sign a Statement of Mutual Consent indicating that this separation is by mutual consent and that neither of you is abandoning nor deserting each other?

Thank You

Thank you for your question. Please permit me to assist you with your concerns.

To answer your question directly, there is no requirement for the spouses to sign such a statement. If the parties are separating, it only becomes potential abandonment or desertion if the parties do not keep in contact for 12 months or longer AND the parties do not assist each other with child support or other obligations. A "Statement of Mutual Consent" would not stop a claim for abandonment or desertion if the parties do not keep in touch once separated, so that document is not necessary in this instance, the intent and further communication between the parties is what is essential.

Good luck.

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