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legalgems
legalgems, Lawyer
Category: Military Law
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I am stationed overseas and recently had to send my wife and

Customer Question

I am stationed overseas and recently had to send my wife and one year infant back as she was not receiving the adequate medical care here for her needs. She departed on 25JUL16, and I have just recently started the ERD process as we were not sure if or when they would be returning. As soon as my wife arrived at the states, he behavior and attitude immediately changed. She never calls, rarely ever answers to a call or text. She never would answer what any issue was or if she needed assistance, or if she had any issues with me or the marriage. It was not until mid-OCT when she finally sent me a text saying she is done and wants a divorce. I do not want or support it and thoroughly believe in counseling or at least trying something before giving up when a child is involved, particularly if its obviously during a stressful time and maybe emotions need to cool off. Unfortunately, it only takes one person to veto our vows and marriage. I told her no matter what I would like to keep things amicable, support whatever she needs to keep things civil. After trying to ask what she would like concerning divorce expectations her reply is "anything and everything I am entitled to." I would like to travel home soon for the holidays to see my daughter, while I would love the family to all be together it doesn't seem possible or a good idea at the moment. I would like to pick my daughter up during my leave and introduce her to my family (5hrs away in the FL, same state). I am getting little to zero feedback from her or her family but it seems like a pretty toxic situation stewing over there.
My questions are: To avoid any unnecessary turmoil or issues when attempting to see my daughter, what legal action or recommendations can I do to ensure I can pick up my daughter on leave?
Q#2: What exactly is she "entitled to"?
Background info: 15yrs in Army. Currently active duty with 12 year active service. We have been married right at 4 years. There are ZERO issues as far as domestic violence from either party. The only case of adultery was conducted by my wife during a TDY.
Submitted: 1 month ago.
Category: Military Law
Expert:  legalgems replied 1 month ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Customer: replied 1 month ago.
Additional info: She is currently residing with her father and mother-in-law. Her health is much better and she is looking for a job.
I think she is expecting me to either pay all of her bills (ones that do not have my name on them) or possibly paying alimony to support her lifestyle. Is she entitled to that?
She does receive a modest amount of money deposited in one of her personal accounts from her mother.I noticed in late September, she stopped paying all of my bills and was paying hers and put in severely behind. I established a plan to remedy it and told her as she is living and being supported fully by her father and step-mother, that she should not have to spend much money in October and I have budgeted every penny to get us back into the black. I also noticed patterns of her spending where she was shopping at grocery stores for "groceries" spending in excess of $180-250 up to twice a day and multiple times a week, I can only assume it was cash back. I told her I don't have an issue with her doing cash back but be upfront. she denied it.After discovering this spending continued in October after she vowed to talk to me if she needed to spend a single penny as it was all set for bills, I panicked and put a block on her card. She still had access to funds via online, check, transfers etc but I needed that card to stop ASAP and I didn't know what else to do. This immediately triggered her decision for divorce.I do not know how much money and havent received any guidance from anyone. I want and need to provide for my daughter, so I opted for $800 to start, with $400 on every paycheck. We have both separated accounts now yet her bills still withdrew $314.11 from my account. So I just deposited the remainder $89.89 of the planned $400
Expert:  legalgems replied 1 month ago.

I am very sorry to hear this and you are correct unfortunately that it only takes one spouse to end a marriage. Some judges will order mediation/counseling but that is not very common (unless it relates to co-parenting issues, versus reconcilation). Most judges feel that divorce is a last resort so a spouse would have considered all alternatives before filing, and that if they rejected counseling, forced counseling does not offer much hope.

So for property, the court will divide marital property (property acquired during marriage, except for by gift/inheritance) in an equitable manner- this means fair and just, which is not always equal. This is authorized pursuant to statute 61.075 and the court will consider the following factors (you will see the last one is a "catch all" so the court can pretty much do a split as the particular judge sees fit; many tend to a 50/50 division):

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.

(b) The economic circumstances of the parties.

(c) The duration of the marriage.

(d) Any interruption of personal careers or educational opportunities of either party.

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.

(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.

(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

(j) Any other factors necessary to do equity and justice between the parties.

For military pensions, the court is allowed to award the non military spouse a portion of the pension-the portion that is accrued during marriage. It needs to be set forth in the decree, and must state either a specific amount, a percentage, or a manner in which an interest may be determined (ie a formula). The parties must have been married for 10 years minimum while on active duty.

As for custody and visitation, the courts will look to the best interests of the child; typically the primary caregiver is awarded custody, with the other parent receiving visitation. The courts tend to prefer to maintain the status quo, acknowleding that stability for the child is essential during divorce. Of course if it is not a safe or nurturing status quo, then that is not applicable.

Both parents, absent a court order to the contrary, have a legal right to the child; that is why most parents will try and get custody and visitation orders as soon as possible, as these are enforceable and can be enforced by the local court and the local law authorities. One can hire an attorney now to prepare the paperwork for custody/visitation, and they can arrange a peremptory setting, which means the court will prioritize the case since it involves a military member stationed overseas. The courts do prefer both parents to have ongoing and continuous relationships with both parents so they will encourage visitation in most cases.

Then there are issues of spousal and child support. Spousal support is very subjective. The court will expect both parties to work unless there is a reason not to. If the spouse is living with parents and thus has no rent, they will consider that too. If a spouse is purposefully un/underemployed the court can "impute" income-basically when making the calculations attributing a certain income to the un/underemployed spouse.

Child support is more definitive as there are statutory guidelines-here is a link to a calculator for an estimate

For considerations regarding military custody/visitation issues please see here and here

This explains the process of division.

For an overview of the various aspects of divorce please see here

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Customer: replied 1 month ago.
The only other response she has given me in regards ***** ***** was "contested or uncontested"? I do not know how I can answer that when she doesn't want to discuss what the expectations are? The only sense I get is that she is being coached and it is likely contested as I feel consistent negativity from that direction.Does the judge consider the fact that I am opposed to this and as well as completely confused as to why and haven't received any answers when considering alimony or spousal support. As in, the timing and decision is solely on her shoulders. Is there any advantage to filing first.For my visitation rights, I know the military will pay at least once a year from me to travel to pick her up and brick her over here, as well as the return trip. What do I do if the wife is unwilling to give me my daughters passport, an OFFICIAL military dependent passport at that
Customer: replied 1 month ago.
If after the ERD is approved I receive BAH, is she expected to receive all of it?
Expert:  legalgems replied 1 month ago.

Contested would mean the parties are in agreement- and are able to sign an agreement detailing property division, support, etc; so if that is not the case it would be uncontested.

The judge will still proceed with the divorce- but can take into consideration, for property division, alimony and child custody/visitation issues, why the divorce is occurring.

There is no advantage to filing first - one does not gain benefit by being a petitioner versus a respondent.

If one party refuses to provide a passport for a minor child, one can petition the court and the other parent will need to turn it over, or be subject to contempt. If a parent willfully attempts to discourage visitation that is parental alienation and courts strongly discourage this.

For BAH please see:

35. I am divorced with children, what is my BAH allowance?

It depends on whether or not you have legal and physical custody of your children, pay child support, and/or live in single-type Gov't quarters. If you have legal and physical custody of your children, then you are authorized BAH at the with-dependent rate if not assigned adequate family-type Gov't quarters. If your former spouse has custody and you are paying adequate child support (at least in an amount of your BAH-DIFF rate) you are authorized BAH at the with-dependent rate if not in Gov't quarters or BAH-DIFF if assigned single-type Gov't quarters.

http://www.defensetravel.dod.mil/site/faqbah.cfm#Q35

Expert:  legalgems replied 1 month ago.

Hello again; just checking in to see how things worked out;
if you have further questions please don't hesitate to reach out to me here on Just Answer.
Thanks!

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