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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 34560
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Hi, me and my husband are looking into getting a legal separation,

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Hi, me and my husband are looking into getting a legal separation, but I have questions reguarding some things. He is a Marine and we're currently stationed in Hawaii (MCBH), I am from North Carolina and if we do this, I would go back there.

So my questions are:
1. Can I still get an Early Return of Dependents for me and our son(4 months old).
2.Will he still recieve BAH? and will that go to him or to me in NC?
3.We would agree to joint physical custody, so would he keep the house?
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

I will try and answer your questions in order

1. ERD is not typically granted for a divorce or a separation, unless there is evidence of domestic violence. Your spouse can certainly request this...but as I mention, it is not typically granted unless there are compelling circumstances...specifically that the service members criminal misconduct is causing the divorce.

2. He will receive BAH at the rate for the city in NC that you relocate to.

3. On base housing? No. Not if he gets BAH. He will not rate both. He gets one or the other. He will be able to stay in the barracks, but if you leave housing and he starts to draw BAH for the area that you move to, he no longer rates to live in base housing and the will kick him out and force him to either live in the barracks or in town.

Please let me know if you have more questions...happy to assist if I can
Customer: replied 4 years ago.
Ok thank you for your answers, they were helpful. The only thing, is that when we were going to get a divorce my husband requested an ERD and the only thing we were waiting on was the divorce to be finalized. That's why I asked, if I would still get it. And one more question. If me and my husband decided, after getting a legal separation, that we did not want a divorce how do we go about not being separated anymore?
Again, generally speaking the Marine Corps will not pay for an ERD if there is a divorce or pending divorce. It is a money issue...they do not want to pay for two separate moves. So they will not unless there is a compelling reason to do so.

As I mention, there are exceptions, but they apply for criminal misconduct alone.

As for separation?

The best way to do so would be via contract. You go to a lawyer and have them draft a separation agreement . Like any contract you can void it if you both agree to do so. So you have the lawyer draft the separation agreement. You both sign it...then, if you want to get back together? Frankly, if you both agree you can simply tear up the contract.

Now...some states have laws that allow you to record the separation with the court. You can do this if you like...if you do and then want to void it, you would need to again use a lawyer to void the separation agreement.

But if you do not need to record the separation, you can simply use the separation agreement until you either divorce or decide to call off the separation (and return to married life)

P. Simmons and other Military Law Specialists are ready to help you

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