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All divorces can be stressful, confusing and emotional. When one or both spouses are in the military, the complexities can increase significantly, since military divorces involve additional legal issues.
It is critical that you have a Los Angeles military divorce attorney who has a thorough understanding of military issues and has been handling military divorce cases for many years. Call Fernandez & Karney today to discuss your case. We have over 50 years of combined experience and are Certified Family Law Specialists.
While there are some aspects of a military divorce which is exactly like a civilian divorce, there are a number of unique issues associated with military service. Some of these issues include:
- Determining pension benefits for the non-military spouse
- Deciding where to file divorce papers
- Determining whether post-divorce benefits apply
- Determining tax consequences of certain divorce decisions
- Calculation of child support and spousal support
- Deciphering the military spouse’s Leave and Earnings (LEP) statement
- Properly evaluating the military spouse’s Thrift Savings Plan (a retirement savings and investment plan)
Serving Divorce Papers to an Active Military Spouse
Both state and federal laws will apply in your California military divorce. It is important to know that law exist which prevent military spouses from being judged as being in default for failure to act on an unexpected divorce. The Soldiers and Sailors Civil Relief Act, 50 UCS Section 521 allows divorce proceedings to be suspended during the time a military spouse is on active military duty, and for up to 60 days after. While the military spouse may take advantage of this Act, that spouse also has the right to waive the Act and move forward with the divorce.
The non-military spouse must have the military spouse on active duty served with the divorce action as well as a summons, and this must be done in person in order for a California court to maintain jurisdiction. If the military spouse signs and files an affidavit which acknowledges the divorce action, he or she may not have to be served. Grounds for a California military divorce are the same as those for a civilian divorce; most divorces today are filed under “no-fault” laws, and simply claim “irreconcilable differences.”
Deciding Where to File for Divorce
It can be difficult for a military couple to decide where to file for divorce. Unlike filing in the civilian world, which is based strictly on where you live, a military marriage may include a couple from one state, married in another, living in the state of California, and owning property in a fourth state.
Or, the couple may have recently moved to California, therefore may not have been in the state long enough to establish residency. Typically, in order to file for a military divorce in the state of California, either you or your spouse must reside in California, or you or your spouse must be stationed in California.
While military members are afforded the ability to actually live or be stationed in another state from the state they claim residency in, however a non-military spouse does not have that privilege.
Generally, you should consider where you:
- Pay your state taxes
- Were issued a driver’s license
- Had your vehicles are titled
- Own property
- Pay real estate taxes when determining where to file
If you decide to travel to another state to file for divorce, it is important that you factor in the cost of travel, filing the necessary documents, meeting with military divorce attorneys, and, if your divorce case goes to trial, attending every hearing. Those costs could offset any benefits gained from filing in another state.
Understanding Military Pay and Benefits
The military spouse may be entitled to certain military benefits. It is important that both spouses are clear on exactly what these benefits are.
Those in the service will have an LES—Leave and Earnings Statement—which is basically a pay stub which details the service member’s rank, years in the service, earnings and deductions. Base pay will be broken out from special pay such as career incentive pay or hazardous duty incentive pay. Non-taxable benefits will be broken down into the basic allowance for subsistence which is a set amount for monthly food expenses, and the basic allowance for housing.
The amount of BAH will vary, depending on the location and whether the service member has dependents.
It does not matter how many dependents, but only whether there are dependents. If the military member, spouse and children live in military housing, BAH is generally not received, since military housing is provided free to military members.
It makes no difference whether a minor child or children reside with the military member following the divorce; if that military member pays child support, then he or she will receive BAH at the “with dependents” rate, unless the member is provided military housing, the member is assigned to sea duty, or the member is in a pay grade above E-3. Since both BAH and BAS are considered cash benefits, they must be included on the financial affidavit during a divorce. BAH and BAS must also be included in gross income when child support is being calculated.
The Military Pension
Many non-military spouses are unaware of just how valuable a military pension can be after the service member has served for twenty years or more. In fact, the pension may actually be one of the most valuable assets in a long-term marriage.
A Captain or Colonel could potentially receive more than $6,000 per month in retirement benefits after serving for 20 years. It is generally more beneficial to the non-military spouse to have the retirement pension distributed at a fixed dollar amount or a specific percentage.
A fixed dollar amount will not include cost of living increases while the percentage method could be more advisable when the military spouse has already retired, and all facts are fully disclosed.
If the marriage has lasted less than 10 years, no division and distribution of the military pension to the non-military spouse will occur. Generally speaking, military retirement benefits are not considered a divisible asset, until the military service member has reached the age where he or she is eligible for retirement.
Military pensions, like many other types of pensions, end when the military spouse dies, unless the military spouse chooses what is known as a Uniformed Services Survivor Benefit Plan, which allows the surviving former spouse to continue receiving benefits.
The divorce decree should clearly state whether an SBP is chosen, and if it is, a specific form (SBP Election Statement for Former Spouse) must be filed within one year of the divorce with the Retired Pay Office of the Defendant Finance and Accounting Service.
The 20/20/20, 20/20/15 and 20/20/10 Rules
When determining whether a former spouse of a military service person is entitled to full military benefits (medical benefits, commissary, exchange and theater privileges), the length of the marriage as well as the length of the military person’s service will be factored in.
If the marriage lasted at least twenty years, the military service member had at least twenty years of service, and there was at least a 20 year “overlap” between the marriage and military service, then the former spouse would be entitled to full military benefits, including lifetime medical benefits.
If the marriage lasted at least 20 years, the military service member had at least 20 years of service and there was at least a 15-year overlap between the two, then the former spouse of a military service person would be entitled to transitional military medical benefits for one year.
If the marriage lasted at least 20 years, the service member had at least 20 years of service and there was at least a 10-year overlap and the former spouse was subjected to documented domestic abuse from the military service person, that spouse may be entitled to full military benefits. This type of benefit is known as full benefits under special circumstances.
Filing for Divorce and Asset Division for a Military Divorce in the State of California
The filing process for a military divorce in the state of California is much the same as for any divorce. As noted above, the military spouse must receive a summons and a copy of the divorce petition.
Since California is a community property state, there is a strong presumption that all assets and debts accumulated by the couple during the marriage will be considered community property. Any property owned by one spouse before the marriage or property which is acquired through an inheritance or gift during the marriage is generally considered to belong to that spouse only—with certain exceptions.
If property owned prior to the marriage is titled in both spouse’s name after the marriage, then it is considered a marital asset. If a spouse is added to the other spouse’s bank account after the marriage, then all the money in that account—regardless of whether it was acquired before or after the marriage—is considered marital, community property to be split. In other words, if you want to keep the assets you had prior to your marriage separate from marital assets, you must really keep them separate throughout the marriage.
Community property laws generally divide marital assets right down the middle, as opposed to equitable distribution states which seek to divide marital assets fairly, rather than exactly equal. A military divorce may add such issues as the couple being separated for extended periods of time, as well as more complex asset and liability division.
Child Support in a Military Divorce
If there are minor children of the military marriage, the amount of child support, combined with any awarded spousal support, cannot exceed 60 percent of the military spouse’s pay and benefits.
Other than this rule, child support will be calculated as it would be for a civilian divorce in the state of California. Child support is based on a complex calculation which considers both parents’ incomes, how much time each parent will spend with the child or children, and the tax deductions available to each parent. Speak with an experienced Los Angeles family law lawyer to explore your child support obligations.
How an Experienced Los Angeles Military Divorce Attorney Can Help
It is virtually never a good idea for a non-military spouse to try and circumvent military notification requirements. Should your divorce petition fail to disclose your spouse’s military status, any type of default judgment could potentially be set aside. Because there are additional issues associated with a California military divorce, you will want to ensure your rights are properly protected. Your Los Angeles military divorce lawyer can evaluate your marital assets carefully, taking into consideration the retirement benefits of the military spouse. He or she will then ensure both an equitable distribution of assets, and a fair child custody agreement, if there are minor children.
To learn more about your rights and options for a military divorce, contact us. At Fernandez & Karney, we can help during a free consultation in Los Angeles.