The procedures for obtaining a Military divorce in California are generally no different than anyone else seeking a divorce. However, if you are in the military or a military spouse, there are some additional factors that can affect your divorce.
The Law Offices of Edward Misleh, APC is a Sacramento law firm, located in Sacramento, California that practices family law, divorce, and military divorce. We represent clients, including veterans, in Sacramento, California and in Northern California with services they need and deserve when addressing divorce, and specifically military divorce. Call now our Lawyer Hotline. We offer a free consultation to all new clients. Call now 916-443-1267 for your free consultation.
Military Divorce Issues
Military divorce issues that arise during the parties’ divorce proceeding include, dividing military pensions, thrift savings plans, survivor benefits, base privileges, and TRICARE .
A military divorce, is defined as a divorce where one of the parties (the “service member”) is active duty military, reserve or guard, or retired military. This is not a “legal” term that is recognized within the context of the law, but a lay term used to describe a divorce where one of the parties is a service member (regardless of the member’s status).
The process for obtaining a military divorce in California may take longer if the service member is on active duty, in a remote area, or has a permanent station overseas. You should also be that, under federal law, the Uniformed Services Former Spouses’ Protection Act provides that issues, such as child support, spousal support and military retirement pay/pension are determined by California state law. This act gives California the authority to treat military retirement pay and pension plans just like any other marital asset and for the state to classify military retired pay as property, as opposed to income.
Military Retirement Pay/Pension
If you have been married to a military member for 10 years and there is an overlapping 10 years of military service (married and in service at the same time), direct retirement payments are made through the Defense Finance and Accounting Service. To receive payments otherwise, any portion of a military member’s retirement pay or pension must be included as part of a California divorce marriage settlement agreement. An award of military retired pay may be in addition to any award for child support and spousal support.
Maximum Amount of Pension
The maximum amount of pension income an ex-spouse can receive is 50% of the military member’s retirement pay. Direct payment from the Department of Finance and Accounting Services take about three months to start if the ex-spouse military member is already receiving their pension. Should the military member be active, and not be retired, payments will begin 90 days after the newly retired member becomes entitled to receive their first payment. Should the military member’s retirement pay or pension be reduced for child support payments, the maximum combined amount that can be deducted is 65% of the military member’s disposable retirement pay.
Point Accumulation Calculation
There are different methods of calculating what percentage, the spouse of the military member, is entitled. Any agreement on a division must clearly state the formula used to calculate the former spouse’s interest. The military member’s service points accumulated during marriage is divided by the member’s total service points to arrive at a percentage rather than months.
Net Present Value
An active military member offers a lump-sum buyout to the former spouse. Many military members prefer this approach to avoid future deductions and to limit the possibility of the former spouse obtaining additional amounts from any pay increases.
The former spouse interest in an active military member’s pension is determined at the time of divorce and paid until the service member retires.
California Court Reserve Jurisdiction
A California court does not divide or award the former spouse’s their interest and the issue is reserved to be decided at a future date; often when the military service member retires. A court can reserve any of the many military divorce issues.
Thrift Savings Plan
In California, the division of a military member’s thrift savings plan is treated the same as a division of a 401k. A California court determines the increase during the marriage and awards the former spouse a one-half interest.
Survivor Benefits Plan
Former spouses often believe that they will continue to be a beneficiary of the military member’s Survivor Benefit Plan. Any continuation as a beneficiary must be specifically address for the former spouse to continue as a beneficiary.
Any continued privilege to base commissary, exchange, and theater are determined by the “20/20/20 Rule”. A former spouse, who does not remarry, is entitled to these privileges only if they were married to the military member for at least 20 years, the military member was in the service for at least 20 years, and all times overlapped.
TRICARE eligibility also is determined by the 20/20/20 Rule. Former spouse’s who do not qualify under the 20/20/20 Rule may be eligible for transitional coverage under the 20/20/15 Rule for up to 12 months after the divorce, as long as they do not remarry. A former spouse was married to the military member for at least 20 years, the military member was in the service for at least 20 years, and the years of marriage overlapped with military service for at least 15 years.
TRICARE health benefits require the former spouse to be listed in Defense Enrollment Eligibility Reporting System. Those eligible include:
- Active duty service members;
- Unmarried children of active duty service members;
- Uniformed service retirees, their spouses, and unmarried children;
- Former spouse who are not married;
- Unmarried children of active duty or retired service members.
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