Military Issues FAQS
This website contains only general information and readers should not take any actions without first consulting a qualified attorney about their specific situation.
So long as you are “domiciled” in Hawaii—that is, you are physically present with the intent to remain indefinitely—you may file here. You do not lose your status as a domiciliary of Hawaii if you are temporarily away on military assignment. However, you probably lose domiciliary status if you have PCS orders.
Unfortunately, the answer to this question is often “yes.” In divorce cases, the non-military spouse frequently makes complaints to the service member’s military superiors to attempt to gain leverage in the divorce case. Often, there will be allegations of real or imagined conduct which might be of little interest to the Family Court, but is of great interest to the military. Commanders will enforce court orders—for example, a commander will use his UCMJ authority to order compliance with a support order. Sometimes, however, military authorities go beyond this and misinterpret civilian court orders, or make orders that the civilian court has not and would not have made. A typical example is to order the military spouse to move into the barracks. While it seems a good idea to separate contentious spouses, such an order can significantly disadvantage the service member who is seeking child custody.
Adultery is not a crime in the State of Hawaii, but it is punishable under the UCMJ. Many military careers have been cut short by allegations of adultery, particularly where the service member is a senior NCO or an officer, or the other party is a service member, DOD employee, or military dependent.
The military does not have the authority to grant divorces or legal separations, and therefore a JAG separation agreement is not a substitute for filing an action in the civilian courts. A JAG separation agreement is simply a contract that regulates the financial and other affairs of spouses who have decided that they will no longer live together. It is ineffective for making permanent awards of assets and debts, or to award child custody and visitation. As a contract, it may or may not be enforceable in a civilian court. It will be enforced by military authorities on the military service member, but not upon the non-military spouse. Generally, JAG separation agreements are designed to protect the military from non-support claims from the non-military spouse.
In almost every case the right answer is to get the divorce done first, then do an early return of dependents. If the dependent spouse relocates to the mainland, the military spouse who remains in Hawaii may file for divorce here, in which case the relocating spouse will be faced with defending a divorce case long-distance. This can be extremely disadvantageous, particularly where child custody and visitation may be involved.
Like most states, military retirement is divisible in a Hawaii divorce. However, the non-member spouse can waive a claim to share in the member’s retirement. If you are in Hawaii solely as a result of military orders and might be able to file in some other state where military retirement is not divisible, do not file for divorce here. Generally, the non-member’s share is a fraction of the monthly retirement pay that the member would have received if the member retired on the date of divorce. The numerator of the fraction is the length of marriage overlapping service and the denominator is the total length of qualifying service at the time of divorce. This fraction, times one half, is the non-member spouse’s share. In order to get direct payment from DFAS, the non-member spouse must comply with all the requirements of the Uniformed Services Former Spouse’s Protection Act, the most important of which is that there must be ten years of marriage overlapping military service. Otherwise, the Family Court can still divide the retirement pay, but it will be up to the retiree to pay the non-member spouse directly.
The general rule is that the service-member must reside in the family housing unit, otherwise the family loses its eligibility and must move out within thirty days. The services vary as to how much of a “grace period” will be allowed, and under what circumstances exceptions to policy will be made. For a service member to retain eligibility for family housing in a divorce scenario (and assuming that there are no other dependents residing with the member that would confer family housing eligibility), the member must be awarded at least joint physical custody of a dependent minor child and the child must be in his actual care and custody at least fifty percent of the time.