MILITARY DIVORCE: Our firm provides legal representation for military members and spouses of military members. Military Divorces include issues that are different from regular divorces since there may be a military retirement to divide. Federal law provides some of the basic rules for a military retirement division, while state law provides the law specifying how the percentage is calculated. Our firm represents military clients in Iraq, Afghanistan, Germany, Japan and all over the world. Over the years we have helped our clients obtain summer visitation in Japan, enforce orders from Germany and obtain custody of children. We have convinced the Courts to allow a divorce by testimony of the husband and wife while they were in stationed in Italy.
A community property judgment rendered pursuant to a stipulation between former husband and wife as to allocation of the husband’s military benefits which included Combat Related Special Compensation (CRSC). The husband argued that the trial court lacked subject matter jurisdiction to partition military disability benefits as part of the community. The husband also claimed that the stipulation between the parties read on the record and the subsequent judgment rendered are inconsistent such that the judgment should be corrected to reflect the true intent of the parties as reflected in the stipulation. The Trial Court Judge Beasley held that the court had jurisdiction to enforce its ruling based on the husband’s personal appearance and the judgment had been signed by the husband’s attorney. The Trial Court ruled that the change sought in the wording of the judgment was a substantial change and could not be corrected after it had become final. The Third Circuit quoted the Trial Court and affirmed the ruling as follows:
Here, the subject judgment Mr. Ast seeks to be “reformed” was signed and made an order of court on March 24, 2009. Further, it was approved as to form and content by all counsel at the time. Mr. Ast had until April 2, 2009, to move for a new trial, until May 2, 2009, to move for suspensive appeal, and until June 2, 2009, to move for devolutive appeal. La.Code Civ.P. arts. 1974, 2123, 2087. The court notes that Mr. Ast had seventy days—from March 24 to June 1—in which to read the subject consent judgment and utilize the slowly evaporating procedural remedies available to him. In addition, any fault rests solely with Mr. Ast for not only failing to read the judgment and jump into action, but also for allowing his attorney to sign it in approval as to form and content  before it was submitted to the court for signature. Given the years of silence and Mr. Ast’s approval via his counsel’s signature, the court is at a loss to discern a more presumptively accurate consent judgment. As found in Crawford [49,059 (La.App. 2 Cir. 5/14/14), 139 So.3d 1113], this court is similarly without authority to supply procedural steps that Mr. Ast failed to take.
Ast v. Ast, 162 So. 3d 720, 727 (La.App. 3 Cir. 2015).David Hesser also spoke at the National Business Institute seminar in Shreveport, Louisiana discussing military divorce issues. He covered military retirement issues in great detail including issues of disability pay, CRSC and CRDP. If you have a military retirement issues please contact Hesser & Flynn. If you are unable to afford an attorney we may consider taking your case on a contingency basis to divide the military retirement, provided that you are already divorced.
At the NBI seminar David Hesser discussed significant Louisiana cases regarding military disability such as: Poullard
v. Poullard, 780 So. 2d 498, 500 (La. App. 3 Cir. Jan. 31, 2001), Brouillette v. Brouillette, 51 So. 3d 898, (La. App. 3 Cir. 2010) and how The Uniformed Services Former Spouses Protection
Act (10 U.S.C. 1408) was enacted to overturn McCarty v. McCarty, 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728
(1981). Mr. Hesser has developed a clear legal analysis to seek a share of disability type pay and how to defend claims seeking disability type pay. Please contact us for more details.
In 2010, Louisiana enacted the “Military Parent and Child Custody Protection Act,” which provides special protection for military families. The act provides in part:
“The court shall not enter a final order modifying the existing terms of a custody or visitation order until ninety days after the termination of deployment; however, if the matter was fully tried by a court prior to deployment, the court may enter a final order at any time.”
La. R.S. 9:359.2
“Deployment or the potential for future deployment alone shall not constitute a material change in circumstances for the permanent modification of
a custody or visitation order.”
La. R.S. 9:359.3
A. An existing order of custody or visitation may be temporarily modified to reasonably accommodate the deployment of a parent. Any such order issued in
accordance with the provisions of this Subpart shall be entered as a temporary order by the court.
B. Unless the court determines that it is not in the best interest of the child, a temporary modification order shall grant the deploying parent reasonable custody or visitation during periods of approved military leave if the existing order granted the deploying parent custody or visitation prior to deployment. All restrictions on the custody or visitation in the existing order shall remain in effect in the temporary modification order.
C. A temporary modification order shall specify that deployment is the reason for modification and shall require the other parent to provide the court and the deploying parent with written notice thirty days prior to a change of address or telephone number.
D. The court shall have an expedited hearing on any custody or visitation matters, upon the motion of a parent and for good cause shown, when military duties prevent the deploying parent from personally appearing at a hearing scheduled regularly on the docket.
La. R.S. 9:359.4
The court may delegate some or all of the deploying parent’s visitation, upon motion of the deploying parent, to a family member with a substantial
relationship to the child if the court determines it is in the best interest of the child. For the purposes of this Section, the court shall consider Civil Code Article 136 in determining the best interest of the child. Delegated visitation shall not create standing to assert separate visitation rights. Delegated visitation shall terminate by operation of law in accordance with the provisions of R.S. 9:359.5 or upon a showing that the delegated visitation is no longer in the best interest of the child.
La. R.S. 9:359.6
The court shall permit the presentation of testimony and evidence by affidavit or electronic means, upon motion of a parent and for good cause shown, when military duties prevent the deploying parent from personally appearing.
La. R.S. 9:359.7
These protections can play a large part in protecting the family when a military member is deployed.