For those of us who live in the East Tennessee area, many of us are familiar with the Oak Ridge National Laboratory (ORNL). Marriage can be a challenging prospect for anyone; but being married, related to, divorcing from an ORNL Employee, or initiating a divorce as an ORNL Employee poses its own unique challenges that people may not realize. Why? One answer: Security Clearances.
Why are Security Clearances Relevant in a Divorce?
In the scope of a divorce or child custody proceeding, normally the only occasions in which a person’s occupation becomes relevant is when you’re dealing with:
- Alimony: namely, the amount that your spouse earns at a job,
- Child Support, for the same reason as alimony, and
- Co-Parenting, if your spouse’s work schedule interferes with their ability to co-parent in a consistent manner.
However, if you or your spouse is employed at ORNL, or a similar place where they are required to submit to maintain security clearances such as the FBI or another Government Organization, that employment may have significant impacts on your divorce. Some of these impacts are beneficial to both you and your spouse, but some could increase difficulty and complexity in your case.
There are a number of reasons why having a spouse who works at a job requiring security clearances may have a potentially positive impact on your case.
First, most companies that require a security clearance (sometimes referred to as “access authorization”) are usually mandated and controlled by Federal agencies like the Department of Energy, which governs access authorizations to ORNL employees. Those companies usually pay their employees at a rate similar to persons actually employed by the Federal Agency itself. To illustrate what that means, according to FederalPay.org, the average salary for an employee of the Department of Energy in 2015 was $118,007.68. This type of income will likely affect (1) the likelihood of the payment or receipt of alimony payments, (2) the volume of assets you will receive at the end of your divorce, and (3) the presumptive amount of child support you will receive, if you have minor children with that spouse.
Second, if a person maintains employment with a company that mandates regular security clearances or access authorizations, this means that the government considers that person to meet the national standards of honesty, reliability, and trustworthiness. This makes sense because those employees are then trusted with access to classified information such a special nuclear material, like in the case of ORNL employees. When undergoing these security clearances or access authorizations, the federal agency completes rigorous and extensive background checks. According to the DOE, the extent of the access authorization depends on the person and the type of occupation they are applying for or are trying to maintain. But generally, such access authorizations include reviewing Criminal History Records for an individual for their entire lifetime, running fingerprints, regular and random drug screens, as well as some special requirements for higher clearances such as being administered a polygraph of counterintelligence polygraph, and requiring that the individual not have any foreign-born relatives. Additionally, each employee has to be re-evaluated every 5 or 10 years, depending on the position they hold.
In the context of a divorce, the spouse-employee can put forth evidence of being hired or maintaining employment with companies like ORNL or other federally mandated companies of federal agencies to prove that they do not have a criminal history, they do not use illegal substances, and that they have overall good character. This becomes especially important in cases where the parties have minor children because evidence proof of getting or maintaining this same type of employment and security clearances can be used in court to prove many of the child custody considerations including (1) the moral, physical, mental, and emotional fitness as it relates to their ability to parent the child, (2) the importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment, and others. On the opposite end of that spectrum, if you or your spouse get fired from a job which requires security clearances due to failing a drug screen or having recent criminal history since an earlier background check, evidence of that termination can also be used in court.
While there are some benefits to working for a place with security clearances or having a spouse who does so, there are also some potential drawbacks with respect to a divorce proceeding.
The first thing to consider is that if you file for divorce, it may not be so easy to serve your spouse the divorce papers. If you are attempting to serve papers to your spouse at work, and they work at a job that involves security clearances, then serving them at work may not even be possible. Much like how ORNL is set up, there are series of security checkpoints at buildings which hold and manage government property or classified information. Organizations that require employees to undergo access authorization in order to obtain security clearance will more than likely not let others in those buildings, unless they also personally possess the same clearances. Thus, if your partner does not know you are filing for divorce, or they know you intend to file but do not want the divorce and/or want to delay the process, they can in essence “hide” behind the walls of a security clearance and make themselves unavailable to be served with papers. For the same reason, if your spouse has moved out of the martial residence and you do not have their new address, you may not know where else they can be served.
The second factor to consider in divorces involving a security-cleared employee is the discovery process. For those who don’t know, the discovery process is a vital stage in all lawsuits, where parties get to collect information of the other party, in order to get a better picture of the case and all components of the case that must be litigated. In the scope of a divorce, this means that parties get to collect information relative to both parties regarding what assets they own, how much money they make, how many kids they have, the relative debts the parties owe, and much more. Some of the tools by which attorneys collect this information about the opposing party include, but are not limited to:
- Interrogatories and Requests for Admission, which take the form of a list of questions that the other party has to answer;
- Requests for Production of Documents, which is where one party asks for the other to provide documentation of anything from bank statements to life insurances policies, to mortgage documents, and the other party has to provide those documents where possible; and
- Subpoenas, which allow an attorney to compel third parties to produce documents, such as your spouse’s bank statements, or other types of evidence.
The problem that frequently comes up in the discovery process is that parties who have high-level security clearances or access to confidential data at work are often not allowed to talk about what they do at work. Other times, they are not allowed to discuss anything about their work, even to spouses. This is usually because the Federal Government imposes restrictions on their employees, prohibiting the dissemination of classified and confidential information, as a matter of national security. However, there may be issues related to your spouse’s work that are important for the litigation of your divorce case such as your spouse’s income, how your spouse’s work schedule may impede their ability to co-parent, whether they have been terminated for causes like failed drug screen or criminal history, and so on. Thus, if you or your attorney is trying to collect relevant information for your divorce case, your spouse may be limited on how they can answer questions, they may be limited on what evidence or documents they can provide, or they may be prohibited from discussing such matters all together. Wading through this process can be tedious, contentious, and usually expensive.
Another thing to consider in the context of a divorce case is that due to the level of income that such spouse might make in one of these types of jobs (or really any high-paying job) is that it can become really easy during the life of the marriage to become financially dependent on that spouse. This is even more so the case when you or your spouse becomes a stay-at-home parent for young children or decides not to maintain employment. The issue with that is even if you or your spouse haven’t consistently worked or earned in income during the life of the marriage, under the Tennessee Child Support Guidelines, Courts will impute an income to the non-working spouse. As of May 2020, these laws make the presumption that if there is “no reliable evidence of the [non-working] parent’s income or income potential,” then a non-working male parent is presumed to make an annual gross income of $43,761 per year, and the female non-working parent is presumed to make an annual gross income of $35,936 per year. These are the numbers that courts will require the non-working spouse to use when calculating child support, regardless of whether that spouse is actually capable of earning that much money.
As a result of all of these factors combined, the overall takeaway is that there are some great securities afforded to people who work for Federal Agencies or third-party companies mandated by Federal Agencies, such as ORNL. However, there is a chance that the divorce process will not be seamless. A lot of this information can be daunting at times, but an effective attorney can walk you through the process, step-by-step, doing whatever they can to make sure you are as well situated as possible through the divorce process.
If you or someone you know is in a similar situation who is looking to get a divorce, the attorneys at Held Law Firm can provide you with security, stability, and peace of mind. If you have any questions or would like to schedule a consultation, call us at (865) 637-6550 or visit us online at www.heldlawfirm.com.