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CROSSING THE MILITARY MINEFIELD

CROSSING THE MILITARY MINEFIELD

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CROSSING THE MILITARY MINEFIELD

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  1. CROSSING THE MILITARY MINEFIELD A Judge’s Guide to Military Divorce in North Carolina MARK SULLIVAN Raleigh Mark.Sullivan@NCFamilyLaw.com

  2. “Marriage is an adventure, like going to war” - G.K. Chesterton

  3. “I was married by a judge. I should have asked for a jury” - Groucho Marx

  4. “I don’t think I’ll get married again. I’ll just find someone I don’t like and give them a house.” - Lewis Grizzard

  5. Why do I need to know this? ?? ?? ?

  6. 142,000 Reserve/Guard mobilized as of 10/04 200,000 troops deployed in Gulf Region

  7. NC = 3d largest military population in the U.S.

  8. Starting the lawsuit... • Use of - • Sheriff • Process server • Voluntary acceptance of service

  9. Starting the lawsuit... How to serve HERE… or HERE???

  10. Starting the lawsuit... • USE OF-- • Registered mail, RRR • Hague Convention

  11. Germany 70,000 U.S. troops: > 1st Infantry Division > 1st Armored Division > 21st Th. Supt. Comd. > HQ, US Army Europe & 7th Army

  12. Must use Hague Convention

  13. Germany Wäs ist los? No registered mail!

  14. -- HOT TIP! -- Germany Ich bin ein BERLINER! German translation -- even if Defendant doesn’t speak German!

  15. Servicemembers Civil Relief Act [SCRA] Overcoming the obstacles…

  16. Overview of the SCRA50 U.S.C. App. 501 et seq. • Why was it passed? • What kinds of obligations does it cover?

  17. PURPOSE “Protect those who have been obliged to drop their own affairs to take up the burdens of the nation” Boone v. Lightner 319 U.S. 561, 575 (1943)

  18. LIBERAL CONSTRUCTION “The Act should be read "with an eye friendly to those who dropped their affairs to answer their country's call.” Le Maistre v. Leffers, 333 U.S. 1, 6 (1948).

  19. “Who’s covered by the SCRA?” • Active duty servicemember [SM] • Mobilized Guard/Reserve • Nat. Guard [Title 32, federal emergency & funds] • Dependents (sometimes)

  20. DEFINITIONS §101 “Court” • Court • Administrative Agency • Whether or not of record

  21. Resources,Resources,Resources A Judge’s Guide to the Servicemembers Civil Relief Act “Who ya gonna call?” www.ncbar.com/home/lamp.htm LAMP menu Other Publications / Resources

  22. Default judgments – the BIG picture • What is a default? - No answer, counterclaim - No motions except: • “special appearance” to contest jurisdiction • motion for extension of time for answer

  23. PROTECTION AGAINST DEFAULT JUDGMENTS • Plaintiff’s Affidavit, Certificate, etc. • Defendant not in military, and • Factual basis; or • Unable to determine status - court may require plaintiff to bond • Court-Appointed Attorney before entering default • Duties? Payment?

  24. PROTECTION AGAINST DEFAULT JUDGMENTS 50 USC App. §521 • Court SHALLStay Proceedings • Minimum 90 Days • Application of counsel or court’s own motion • When Court Determines • May be a defense that cannot be presented w/o presence of Defendant, OR • After due diligence counsel has been unable to contact Defendant or otherwise determine if a meritorious defense exists

  25. PROTECTION AGAINST DEFAULT JUDGMENTS 50 USC App. §521 • Court shall reopen when… • SM applies on Active Duty or within 90 days thereafter, and shows • Material effect, plus • Meritorious defense

  26. What is “Material Effect”??? • No single definition • Impairment of ability to participate in civil suit due to military duties -OR- • Impairment of ability to pay financial obligations • Cromer case

  27. Stay of Proceedings – 50 USC App 522 • Temporary delay in lawsuit till SM can appear - • SM has received notice of proceeding • Applies at any stage of proceedings • For at least 90 days

  28. Motion for Initial STAY • How to apply? What must you show?? Stmt re - • Military duty materially affects ability of SM to appear + • Date when SM can appear AND…

  29. Motion for Initial STAY • How to apply? What must you show?? [cont’d] CO statement: • duty prevents SM’s appearance • no leave allowed

  30. Stay of Proceedings • No motion or request - no stay • Court doesn’t have to be a mind-reader • Vestal case

  31. Subsequent Stay Motion: Inquiring into “Material Effect” • need for a hearing • stay is not automatic - court has discretion • limited discovery • no broad, conclusory statements • Booker v. Everhart

  32. Ways to handle stay requests • Move ahead on uncontested claims • Examine stages of case for ones which can go forward-- • answering complaint • mandatory disclosure • financial affidavit • discovery, etc.

  33. Ways to handle stay requests • Is presence of SM required? • Use of telephone… • Or videoteleconference… • Or Internet?

  34. Ways to handle stay requests • Use of military leave? • How much leave was requested? • No leave usually available for training programs

  35. Length of the Stay • “For such period as is just” • Up to rest of term of service? • For the duration of the “material effect”? • For the lifetime of the presiding judge?

  36. Ways to handle stay requests • Due diligence • Good faith • Judkins case

  37. When one parent is mobilized… • Will garnishment continue? • What about rent (eviction?) or mortgage payments (foreclosure?) • Let’s see how this works…

  38. “HELP! What happened to my child support?” “That’s the ol’ ball game!” Left his job Dad was mobilized Garnishment stopped! Foreclosure, eviction? [Use §536!]

  39. Deployment Child Support Issues • Restarting the garnishment • Same amount? • Where send the notice & motion? • Locating, AND • Serving the other side!

  40. Deployment Child Support Issues • Problems, questions… for the SM: • “Should I move for a STAY?” • “I want to request child support reduction -- How can I participate?”

  41. Deployment Custody Issues • Mom has custody of Debbie • Gets orders to Kuwait [unaccompanied!] • ???? Options ???? • Give Debbie to neighbors? Grandparents? • What about to D.A.D?? • What if dad files for custody? Use SCRA?

  42. Family Law • Paternity • a civil court matter • need for determination of paternity • Child support • “interim support” when no order • need for court order

  43. Military Pay: • Components of compensation: • BP = Base Pay • BAH = Basic Allowance for Housing • BAS = Basic Allowance for Subsistence • Special pay for airborne troops, doctors, divers, combat zone, etc.

  44. The LES • “LES” = Leave and Earnings Statement • Invaluable resource for the court: • All pay and allowances shown • Accrued leave • State for income tax w/h • Date for entry on active duty • Current rank, years of service • How do you read an LES?

  45. -- HOT TIP! -- How to read an LES, OR“Through the pay statement jungle with gun and camera!”

  46. Leave-and-Earning Statement

  47. Base Pay + BAS + BAH = Total Entitlements

  48. What’s this for… a car? Discretionary Allotments

  49. Used and unused LEAVE

  50. West Virginia State of Residence for Tax Purposes