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Marine Corps Base Camp Smedley D. Butler


Marine Corps Base Camp Smedley D. Butler

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Family Law

DISCLAIMER:  The information on this page is NOT to be construed as legal advice, and is only provided to help our clients/customers better understand the nature of our services and consultations.  Legal decisions should NOT be made without consulting an Attorney.

 Family Law is the single biggest issue in which the Legal Assistance Office deals with, and as a result, the area of law that the Legal Assistance Attorneys have developed the most expertise. 
If you have any of the following issues please come to the Legal Assistance Office as soon as possible: (Remember- we can only represent one spouse or parent)

- contemplating divorce
- paternity
- child custody dispute
- nonsupport
- Marriage to a partner of the same sex

Here in Okinawa, the Okinawa Legal Assistance Office is unique in that the Legal Assistance Attorneys must regularly advise on matters of international family law, and determinations of which forum shall hold the divorce case.
U.S. citizens should not submit themselves to the jurisdiction of Japanese Family Courts without first consulting with a Legal Assistance Attorney; there are many differences that can alter your legal rights.

The information below is representative of the complexities of Military Family Law and International Family Law; please consult with one of our Legal Assistance Attorneys before making any decisions.

 How do we service our clients with respect to Divorce or Custody cases?

    A.  Divorce.  There are many unique jurisdictional issues that arise in the context of a military divorce, not just between Japanese nationals and U.S. citizens but also between U.S. citizens from different states. 

         (1) Divorce in Japan?  As a general rule, jurisdictions in the U.S. will accept a valid divorce under Japanese law as long as one of the parties is actually a Japanese national.  

            (a) However, there is one major exception:  the "ward office" divorce is not likely to be validated in any U.S. jurisdiction.  Therefore, the U.S. citizen will still be married under U.S. law.  This is because the "ward office" divorce is extra-judicial, and in the U.S. there is no parallel; all divorce in the U.S. is judicial.

            (b) Additionally, there is a substantial chance that a divorce between two U.S. citizens via the Japanese courts will not be recognized by many states if the parties are only in Japan due to military orders.  Why?  The policy behind this is that although the Japanese court may have attempted to apply the law of the state from which the parties reside, the court did not have sufficient interest to warrant attaching jurisdiction over the legal status of the marriage.  *This can be done however if at least one of the parties is a bonafide resident of Japan not through military orders but through a permanent resident visa or potentially SOFA status personnel that retired from the military and took an indefinite term civilian position in Japan.

        (2) Divorce in the United States?  The military does NOT authorize us to represent our clients as attorneys of record before a court however so we attempt to get the client to a point in which retention of a stateside attorney is not needed such as negotiating a marital separation/settlement agreement; otherwise, the client will ultimately need to retain an attorney in the states.

    B.  Marital Separation/Settlement Agreement.  Negotiating and drafting separation agreements on behalf of our clients is ultimately the greatest utility we provide that can make the divorce process in the United States relatively painless.

        (1) Cost savings.  With a separation agreement, it is not difficult for a client to complete the final divorce in a U.S. state without the need of hiring an attorney due to self-help services.

        (2) It settles all outstanding issues between the parties so that there are no decisions left to be made by the court.  Most U.S. states bind the court to honor agreements between the parties regarding property division, and spousal support provisions.  However, the court still must review provisions involving the children to determine if they are in the best interests of the children.

        (3) Certainty.  It allows the couple to determine how their marriage ends, not the court.

    C.  Custody.  This is an area in which there is probably the greatest difference between U.S. and Japanese law, and is often one of the turning points concerning the choice of forum. 

        (1) In all U.S. jurisdictions there are two concepts of custody of a child:  legal custody and physical custody. 

            (a)  Legal Custody involves the major life decisions of a child affecting health, education, welfare and religion.  *The default presumption in the U.S. is that parents will maintain Joint Legal Custody.  As a result, both parents are expected to be actively engaged in the life of the child and must consult with each other regarding major child-rearing decisions.

            (b)  Physical Custody concerns where the child will actually live on a day-to-day basis:  mother or father.  The parent with physical custody is authorized to make all of the day-to-day decisions without consultation such as what the child is eating, wearing for clothing, or what time the child needs to be home at night.  Even concerning physical custody, the preference of some U.S. states is that parents have a joint/shared physical custody arrangement as well as long as they are living within 100 miles of each other.  This means in effect that the child will live with one parent from specified times of the year with one parent and other times with the other parent.  Unless the parents reside in the same school district this typically does not result in an even six-month split and will often not be approved.  *Most of our cases result in one parent having primary physical custody while the other parent has Visitation Rights.

        (2)  What are Visitation Rights?  In the United States, when one parent has primary physical custody of the child (the child only resides with one parent on any permanent basis), the other parent will almost always have Visitation Rights.  Visitation Rights help ensure that Joint Legal Custody is preserved and that both parents play an active role in child-rearing even in situations in which the child only lives with one parent.

            (a) Visitation Rights can be defined by a specific schedule or through a vague concept of reasonableness (as the parents agree to have visitation).  Typically is better to have a specified schedule of visitation.

            (b) The typical visitation schedule is something to the effect of the non-custodial parent having visitation rights on alternating holidays and from 2-6 weeks in the summer during the academic break in the U.S.

        (3) Japanese Law.  There is only one concept of custody in Japan; legal and physical custody are merged.  Additionally, only one parent can be granted custody of a child and Japan has no concept of visitation rights/parenting time.  Further, servicemembers should note that in virtually every case, the mother is awarded sole custody in Japan. 

    D.  Military Support Orders. Each military service has a regulation designed to require military members to provide financial support for their spouses and children in situations in which there is no legal agreement or court order.  These support regulations are the quickest means to get financial support for a spouse needing support, but it is not a final solution.

        (1)  Marine Corps:  the support regulation in the Marine Corps is a strong regulation because it is punitive; meaning that if the Marine does not provide the required support he/she can be subject to non-judicial punishment or court-martial.

            (a)  Chapter 15 LEGADMINMAN- MCO P5800.16A

            (b)  Support amounts here in Okinawa are typically $350 for one family member, $286 for each of two family members, $233 for each of three family members, and $200 for each of four family members.

        (2)  Army:  Like the Marine Corps order, the Army's support regulation is also punitive.

            (a) Army Regulation 608-99---the support amounts are complex formulas that typically result in the highest amounts required of any of the military services.

        (3)  Navy:  The Navy regulation is NOT punitive but a Sailor can be subjected to adverse administrative action if he/she fails to provide the counseled support.  A Sailor will be counseled to provide 1/3 of his/her gross pay for interim financial support for just a spouse, 1/2 for a spouse plus one child, 3/5 for a spouse plus two or more children.

            (a) MILPERSMAN 1754-030, Chapter 15.

        (4)  Air Force:  this is the weakest of the support regulations.  Largely, the Air Force instruction just instructs commanders to inform the service member of a legal and moral duty to provide financial support to family members.

    E.  Uniform Interstate Family Support Act (UIFSA).

        (1)  Currently neither the United States nor any U.S. state has an agreement with Japan under the authority of UIFSA to honor child support orders from Japanese courts and vice versa. 

        (2)  International Comity.  It is, however, possible to enforce a Japanese child support order in a U.S. state when the court had proper jurisdiction and the U.S. citizen received notice and due process of the proceedings under principles of comity.  A U.S. state court may possibly enforce a Japanese child support order under comity if:

            (a) The judgment is FINAL.

            (b) The judgment was entered under procedures that were fundamentally fair (due process such as notice and an opportunity to be heard before an impartial tribunal/arbiter).

            (c) The enforcement of the order would not be contrary to the public policy of the forum state.

            (d) The Japanese court either had personal jurisdiction over the U.S. citizen at the time, or the U.S. citizen submitted himself to the jurisdiction of the court.

        (3)  How to seek international comity of a foreign support order?  In order for the Japanese support order to receive comity, the party seeking to enforce it will need to file a civil action in the U.S. state having personal jurisdiction over the party in which the order is sought to be enforced.  This procedure is basically seeking to domesticate the order; if comity is granted, the order will have to be enforced in all U.S. jurisdictions under full faith and credit.

    F.  Hague Convention on Recovery of International Child Support.  The United States has signed the convention and there is proposed legislation in the U.S. Congress to actually implement the treaty to make it part of U.S. law:  H.R. 1896, 113th Congress, 1st Session.

    F.  Military Benefits

        (1)  Military Retirement Pension. U.S. federal law authorizes U.S. state courts to divide the military retirement pension in divorce proceedings as a marital property share NOT as a basis of spousal support.  This is a defined benefit retirement plan.

            (a)  The most common formula is to calculate a marital property share percentage of the disposable retired pay based at the time of retirement.  For example:  Number of Years of Marriage overlapping Military Service / Number of years of service at retirement * 0.5.  So if the couple has been married for 20 years and the Marine retires from the military at 20 years that all overlapped the marriage then the marital property share for the spouse would be 50% (percent).

            (b)  If there is a valid divorce proceeding in Japan in which the service member consented to the jurisdiction of the Japanese court consisting of a marital property division that order would have to be registered and given effect by a U.S. state court that has personal jurisdiction over the service member to be enforced.  Basically, the order would have to be Americanized.  This would be the only theoretical way to enforce the retirement pension division because U.S. federal law only authorizes U.S. states to divide the pension, and even then only a U.S. state in which the service member is domiciled or he consents to jurisdiction can do it.

            (c) NOTE:  In addition to the military retirement pension which does NOT vest until a service member is retirement eligible, many service members contribute to the Thrift Savings Plan (TSP) which is a Defined Contribution Retirement Plan.  The TSP is also subject to division as marital property in divorce proceedings and can often be overlooked by spouses.       

        (2)  Compensation for Domestic Violence Victims.  Pursuant to U.S. law, spouses or children of U.S. service members that were victims of domestic violence by the service member may be entitled to transitional compensation for a period of 12-36 months if:

            (a) The service member received a punitive discharge at court-martial for a domestic violence related offense or received a punishment of total forfeiture of all pay and allowances; OR

            (b) The service member was administratively separated from the Marine Corps on the basis of domestic violence.

            (c)  *NOTE:  some U.S. states also have statutes that could entitle a victim to compensation from that state government in addition to the compensation from the U.S. Government.

    G.  Same-Sex Marriage: Read MARADMIN 483/13 regarding administrative absences to obtain a marriage in a jurisdiction that legally authorizes it.  This policy provides servicemembers with the opportunity to receive up to 10 days (due to OCONUS location in Okinawa) administrative absence that does not count against his/her leave to obtain a marriage in the nearest U.S. jurisdiction that has marriage equality, i.e. the state of Washington or California.  Note that marriage between partners of the same-sex is not authorized under Japanese law so travel will be necessary.

        (1) As a result of the U.S. Supreme Court's ruling in United States v. Windsor, 133 S.Ct. 2675 (2013), spouses of the same-sex cannot be denied the same federal benefits that spouses of opposite sex receive to include military and veterans benefits.

                (a) Taxes: spouses of the same-sex can now file joint federal income tax returns.  Whether joint state income tax returns may be filed is a matter of state law that will vary depending on marriage equality laws.  

                (b) USCIS began accepting applications for Visas for spouses of the same-sex to enter the United States.

        (2) The following states have marriage equality: California; Connecticut; Delaware; Illinois; Iowa; Maine; Maryland; Massachusetts; Minnesota; New Hampshire; New Jersey; New York; Rhode Island; Vermont; Washington, and Washington D.C.

        (3) The following states have civil union laws: Colorado, Hawaii, Nevada, and Oregon.  Note that a civil union is not legally defined as a marriage so it is highly recommended to travel to a jurisdiction that authorizes marriage to ensure proper benefits are received.