Divorce, custody and driving: What you need to know

  • Published
  • By Capt. Jessica Rucker, Chief of Civil Law
  • 88th Air Base Wing

WRIGHT-PATTERSON AIR FORCE BASE, Ohio – The Legal Assistance Office should be your first stop when considering legal separation, dissolution of marriage or divorce.

Our legal assistance attorneys are here to help you get started – whether that’s finding and starting the “pro se” packets online (“pro se” means unrepresented by legal counsel), guiding you toward a civilian family law attorney or submitting a pro bono referral on your behalf.

Air Force families have unique situations that many civilian attorneys may not be familiar with. While we are not able to represent you in court, we are here to help with the basics of navigating this tumultuous time in your life while taking you and your family’s service into consideration.

(Please note: This is general military divorce information, not legal advice to replace an attorney licensed in your state of filing. Do not rely on this advice alone – always double-check with a licensed attorney who knows how to verify your state’s divorce laws, child-custody laws and courts).

1. Where to file The first thing you’ll want to think about is where you will file for divorce. If you have been at Wright-Patterson Air Force Base for over six months, you can likely file here, even if you did not get married in Ohio and do not claim it as your state of residence. If your life circumstances make it so you need to file for divorce but have not hit that six-month window, you may need to file in the last state you were stationed, or potentially in your home of record.

Many things will play into where you file – whether your soon-to-be ex-spouse will fight you on jurisdiction, whether you and your spouse have lived in the same state for the last six months, and whether your children have been living with you or a family member while you were overseas.

Courts are strict about jurisdiction over children. One state may have jurisdiction to divorce you but may not have it to decide child custody because of where the child has been living.

Another important thing to consider is the Uniform Child Custody Jurisdiction and Enforcement Act, which is enacted in all 50 states. It creates a statutory preference that jurisdiction stay consistent for children – meaning that if child custody is decided in Montgomery County but you and your family get stationed elsewhere and never return to Ohio, you will have to convince a judge to change which court is going to oversee your children’s custody.

This will likely require an attorney. When looking to hire a civilian family law attorney, make sure you ask about their experience with military families. Depending on your situation, it may be helpful.

2. Retirement considerations Even if you are nowhere near retirement, certain states, including Ohio, allow spouses of active-duty service members to be awarded a prospective share of your military retirement. If you have served only seven years on active duty, this means your spouse can be awarded a percentage of what your retirement could be, should you complete 20 years of service.

This is also something to take into consideration when timing your divorce and your jurisdiction clock is running. If you are nearing a permanent change of station to a state that does not have this prospective retirement spouse award, you may want to hold off on filing.

The Survivor Benefit Plan is another term to remember when divorcing. SBP can only be elected once – at the time of retirement. If you don’t choose SBP when you retire and then divorce a year later, your spouse cannot ask the court to order you to provide SBP. At that point, the proverbial ship has sailed.

However, if you’re divorcing near 20 years of service, your spouse should ask the court to order you to sign up for SBP and name them as a beneficiary. It will be up to you, your attorney and what the court deems “just and equitable” to determine whether your ex-spouse should receive SBP until you pass away or remarry.

In a custody battle? Here’s what you want in your court order

If you are just starting your child-custody court battle, or modifying the old terms, here is a list of things you may want to ask your attorney to consider adding to a proposed modification or stipulated custody agreement:

1. Child support:

  • Both parties will submit a new Leave and Earnings Statement and confidential financial affidavits to the court and Child Support Enforcement Agency within 30 days of new assignment.
  • Both parties consent to continued jurisdiction for child-support matters. (Child support is money; therefore, enforcement follows the person. For enforcement, you would have to file in the state where the person is physically residing for an order to pay child-support arrears. Having the parties agree upfront to use one state for enforcement eases the process – check with a local attorney whether this is a term local courts would permit. Jurisdictions are split).

2. Parenting time/visitation when living within 50 miles of the other parent:

  • Shared custody and 50-50 visitation? Weekend visitation only?
  • Right of first refusal – Mandate that when one parent can’t watch the child, they must first ask the other parent to watch him or her before they ask another family member or babysitter.
  • Holiday time – odd and even years; special holidays to consider: Easter, Halloween, parent’s and pet’s birthday. Which parent will get the first half of winter break vs. the second half?
  • Automatic temporary sole custody when active-duty parent is deployed – to expire within 48 hours of deployed parent’s return to country; must provide orders to the court.
  • Do your parents or new spouse get your visitation time while you’re deployed?

3. Parenting time/visitation when living beyond 50 miles of the other parent (IT’S IMPERATIVE YOU INCLUDE BOTH SCENARIOS WHEN ONE PARENT IS ACTIVE DUTY):

  • Strict holiday schedule – A visual chart with visitation dates may be helpful.
  • Require the child’s yearly school schedule be provided to the noncustodial parent before beginning of school year.
  • How old is the child? Is he or she old enough to be away overnight for days or weeks at a time from their custodial parent? If not, are you willing to travel to the state of that child’s residence instead of them coming to you?
  • Transportation costs: Noncustodial parents typically pay for transportation and fees associated with the child coming to them; custodial parent pays transportation fees for child to come home.
  • Summer visitation: Two to six weeks typically, depending upon age; longer summer visitations usually call for temporary child-support abatement; decide whether you want the visit to begin the same time every year or if the noncustodial parent needs to coordinate annual dates with a 30-day written notice.
  • Weekend visits: If the noncustodial parent gives the custodial parent a 30-day notice, can they fly in and exercise a weekend visitation outside holiday visits?
  • Phone calls/FaceTime: What days and times is the noncustodial parent allowed to call? Take into consideration the time difference, child’s extracurricular activities and school time.

Make sure you put sufficient time, effort and collaboration into developing a thorough and all-encompassing custody and visitation plan. It will save you time, money and headaches in the future.

How to get an Ohio driver’s license

As many of you have discovered upon a PCS to Wright-Patterson AFB, the Ohio Bureau of Motor Vehicles is not always up to date on what its military clientele require.

Within 30 days of moving to the state, new residents must obtain an Ohio driver’s license, according to Ohio BMV guidelines and statutes. The key word is “residents.”

Despite what the BMV clerks may tell you, neither you nor your spouse are required to surrender your valid out-of-state driver’s licenses for an Ohio license if you intend to keep your current state of residency. Just make sure you know the renewal process back home, should your license expire while out of state.

If, however, you do want to become an Ohio resident (which means paying Ohio taxes and voting here), then you should get an Ohio driver’s license. There’s no sanction if you fail to do so within 30 days of arrival, but you should make it a priority as you settle in.

A special note for our foreign liaison officers and their families:

The Geneva Convention on Road Traffic states that within your first year here, you can drive a vehicle with foreign license plates and use your foreign driver’s license. I still encourage you and your spouses to obtain an international driving permit, as that will help if you get pulled over for a traffic violation.

You may still receive a traffic ticket for violations since local police aren’t well versed in this area, but the “no operator’s license” citation should be dropped by Ohio traffic attorneys. Our office is unable to assist with traffic tickets since they are a criminal matter, but we can assist with finding a local attorney who can represent you, if needed.

Foreign liaison officers and spouses are not required to obtain an Ohio driver’s license within 30 days of arrival; that requirement is only for intended residents, which you are not.

You can use your foreign driver’s license to obtain car insurance. It may take longer, but there is no law stating you are required to have a U.S. driver’s license to obtain car insurance.

If the insurance company insists, then ask them to show you in its policies that a foreign license is not permitted. If there is proof regarding company policy, I suggest finding a different company until the Ohio license is obtained.

If you need assistance communicating with insurance companies, contact the base legal office. We can write a letter on your behalf or even speak to a company representative once you give them permission to communicate with us.

It can take up to nine weeks to process through U.S. Citizenship and Immigration Services to obtain the required screening for your U.S. driver’s licenses. You should start the process around 90 days prior to the one-year mark to ensure you get USCIS clearance in time.

Foreign liaison officers and spouses are entitled to a driver’s license with Real ID. If you receive pushback, we can help. Contact the WPAFB Legal Assistance Office at 937-257-6142.