Many couples mistakenly assume that the process for a military divorce in California is the same as a California civilian divorce. This is often not the case and a California Military Divorce can create many issues a couple must properly address or be aware of in order to proceed with obtaining a dissolution of their marriage.

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Military Divorce

A military divorce is a slightly different process than a divorce for civilian couples . A military divorce filings must first address jurisdiction – the power of a court to hear a case. Additionally, a military divorce must address military pensions, survivor benefits and thrift saving plans.

Read more about Military Divorce Issues by clicking here: Military Divorce Issues

Jurisdiction

The law typically allows for the filing of a divorce in the state where either the husband or the wife has a legal residence. The person starting the divorce usually files in the state where they live. Before choosing where to start the divorce, it’s important to know how that state handles the division of military pensions. The federal law governing the division of military pensions is the “Uniformed Services Former Spouses’ Protection Act” (USFSPA). This federal law says that the state where the military member resides always has the power to divide the military pension in a divorce. If you file for divorce in a state that is not the military member’s state of legal residence, then the court may not have the authority to divide the pension.

Jurisdiction for Military Divorce

Before a court can grant a divorce, it must determine if it’s the right court (or jurisdiction) with authority to render a judgment on the case. For divorces, jurisdiction is normally where the couple lives. For California, the couple must reside in, or a spouse must be stationed in, the state for there to be jurisdiction in a divorce case. And, a California court can spell out how much alimony and child support will be paid.

Read more about Military Divorce Jurisdiction by clicking here: Military Divorce Jurisdiction

Servicemembers on Active Duty

When one spouse files and serves divorce papers on the other spouse, the responding spouse must file and serve a response. This gives the court personal jurisdiction to go forward with scheduling of mediation and formal hearings. However, a federal law can change the normal court time schedule and deadlines if one party is on active duty. This law is the “Servicemembers Civil Relief Act” (SCRA) which allows active duty service members to request a “stay” (put on hold) a divorce if their duties prevent them from responding to the court action. The initial “stay” is for at least 90 days. The court can grant extensions after 90 days for good cause but, the divorce cannot be postponed forever. The purpose of the “stay” is to delay the court action as long as the military member’s duties interfere with his/her participation.

Protection From Service of Process While Deployed

When a military members are deployed overseas, they are entitled to legal protection under the Service Members Civil Relief Act. This act protects the military member from service of process of divorce papers, child custody or support papers, alimony papers, and any other legal proceedings while deployed. Additionally, under the act, if the service member returns from deployment in an active war zone, he or she is protected from service of process for an extra 60 days upon returning to US soil. The purposes of these protections is to allow our military service members to focus on their job while they are deployed and also gives the military members an opportunity to be in the country and available to handle their legal affairs.

Serving an Active Military Member with Divorce Papers

As with standard California state law for civilian service of process, the petitioning party is required to serve the active duty military service member spouse a summons. The spouse on active duty needs to be personally served with a summons and a copy of the divorce action for a California court to have jurisdiction over the case. If the divorce is uncontested, personal service is not required if the active duty spouse signs and files a waiver affidavit acknowledging the divorce action.

Service Members Civil Relief Act

The Service members Civil Relief Act of 2003 (SCRA), formerly known as the Soldiers and Sailors Relief Act of 1940, is meant to protect military service members from being taken advantage of while away from home serving their country. The idea of the SCRA is to protect service members from legal issues at home so that they can focus on their military tasks at hand. The law allows service members to get a delay in any court proceeding that might affect their rights. When a member of the military is sued in a divorce case and they are stationed in another state or another country, the matter can be delayed for a reasonable time to allow that person to more fully participate in the process.

The SCRA protect all active members of the Army, Navy, Air Force, Marines, Coast Guard, officers of the Public Health Service assigned to the Army or Navy, reservists on active duty, dependents and persons or businesses who may be liable along with the member of the military.

Under the SCRA, a service member can seek a postponement of the divorce proceedings while on active duty or for 60 days following active duty. The SCRA does not affect the judge’s decision on the merits of a divorce case, only if a delay will be granted.

The SCRA also prohibits a service member from being in default of a court order. A default is obtained when a California court enters a decision in favor of the party that appears in court against a party who has not appeared. This provision applies in family law cases, including divorce. If a default has been entered and the military member has no knowledge of the proceedings the military member, when released from active duty, has 90 days to ask the court to open a default judgment that was entered while the person was deployed.

Court Notice of Deployment

When the divorce complaint is filed, the person filing it must swear out an affidavit stating whether or not the other party is serving in the military. If the affidavit states that the person is in the military, the court cannot enter a judgment against the person unless and until the service member appears in court or a lawyer is appointed by the court to represent their interests.

If the service member comes back to learn the legal process is over without any notification because the affidavit was false, the party filling it out could face perjury charges. The party could also request that the order be vacated.

Stay of Military Divorce Proceedings

SCRA does not limit the power of judges to make decisions on the merits of the case and does not empower a member of the military to have a divorce case dismissed or have court order in his/her favor just because they are in the military. A court can stay the proceedings if a party’s military service has a material effect on the ability to defend the divorce case. A judge can also deny a stay if the military service has no material effect on the ability to defend against the litigation.

If the military member makes a request, a 90 day delay in the proceeding is normally automatically granted. If more time is sought, the service member must establish they have tried to get a leave of absence to attend the scheduled hearing but were unsuccessful. If that request isn’t granted, the court needs to appoint an attorney for the service member. The length of the delay that must be “reasonable” which depends on the situation, but it can be no longer than the length of the service member’s duty plus three months.

Results of a Stay

The adverse results are that a delay will prevent a California judge from issuing orders. The result is that the non-military spouse will have more time to respond and that the process will be extended. The advantages to the non-military spouse of a delay is that such a delay can result in the non-military spouse being eligible for benefits from a long-term marriage. If the military spouse is close to the twenty years of service mark, the non-military spouse will only have to wait a short time for entitlements such as, base housing or a housing allowance, commissary privileges, post exchange privileges and on-base or post medical care.

Military Divorce Residency Requirements

A military divorce can be filed in one of three jurisdictions: (1) the legal residence of the military member; (2) the legal residence of the spouse; and, (3) the state that the service member is stationed in. To be able to file for divorce in California, either you or your spouse must reside in The State of California or you or your spouse must be stationed in California.

Grounds for Military Divorce

Since California is a no fault state, there are no requirements for either party to show or prove the particular reason why they want to be divorced. A party need only file under one of two grounds: irreconcilable differences or incurable insanity. Irreconcilable differences means that the court has found substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved. This is often achieved by one spouse’s declaration that they no longer wish to be married. Incurable insanity requires proof from medical or psychiatric testimony that the other spouse is incompetent and remains so at the time the petition was filed.

Read more about divorce by clicking here: Understanding Divorce

Read more about Military Divorce requirements by clicking here: Military Divorce

Read more about a putative spouse by clicking here: Putative Spouse

Read more about divorce by clicking here: Simple Divorce

Read more about forms to use for divorce by clicking here: Divorce Forms

Types of Military Divorce

Under California law, a divorce can be either contested or uncontested: Contested means that the parties have not reached an agreement to divorce or that the related issues, such as spousal support, child support, or property distribution have not been resolved. Uncontested means that the parties have reached an agreement on the above-mentioned matter.

Read more about the divorce process by clicking here: Divorce Process

Read more about legal separation in California by clicking here: California Legal Separation

Read more about annulment by clicking here: Annulment

Read more about divorce by clicking here: Simple Divorce

Read more about divorce by clicking here: Inexpensive Divorce

Child Custody, Child Support and Spousal Support

A California court will determine child custody, child support, and spousal support. Under California law, child support and spousal support/alimony awards cannot be more than 60% of a military member’s pay and allowances. California child support guidelines, worksheets and schedules are used to determine the amount of child support to be paid. There also special rules by the military concerning spousal and child support designed to ensure a service member’s family support obligations beyond a divorce or separation. Federal law can preempt a California court’s ability to determine retirement benefits distribution and Veteran Administration disability benefits will not be allocated to the non-service spouse. However, a California judge can take into consideration any disability payments when calculating child support, maintenance, and the division of property and debt.

Read more about Military Member Child Custody & Visitation by clicking here: Military Member Child Custody & Visitation

Read more about child custody by clicking here: Modify Child Support

Read more about child custody by clicking here: Sole Child Custody

Read more about child custody by clicking here: Joint Legal Child Custody

Read more about child custody by clicking here: Primary Parent

Read more about child custody by clicking here: Child Custody & Visitation

Read more about child custody by clicking here: Move Away Orders

Read more about Child Custody while in Military Service by clicking here: Child Custody while in Military Service

Read more about Military Member Support Payments by clicking here: Support Payments Made by Military Members

Spousal Support and Child Support

While normal child support guidelines are used to arrive at the amount of child support a service member is responsible for, under California law, the combination of spousal support and child support cannot make up more than 60% of the military member’s pay and allowances.

Read more about spousal support by clicking here: Spousal Support

Read more about spousal support by clicking here: Duty to Become Self-Supporting

Read more about Military Member’s support obligations by clicking here: Military Member Support Payments

Read more about spousal support by clicking here: Support Modification

Read more about child support and arrears by clicking here: Arrears Child Support

Child Support

The amount of child support in a divorce is determined by state law. Generally, once the amount of child support has been set by a court, it requires another court hearing and order to change the amount of payment.
However, before a court has determined the amount of child support, you can get assistance directly from the military. Service members are required to provide adequate child support for their children. Each of the services, except the Air Force, has rules on how much the parent should pay. Contact the legal assistance attorney on base, or your spouse’s commanding officer, for help getting child support. Later, the court handling the divorce, or child support case, can make its own decision of how much support should be paid based on the laws of that state. In California, the courts follow the state’s child support guidelines to decide the amount of child support. For military families, it’s important that the court understand the various elements of a service member’s pay. The court should also understand the potential for those amounts to change based on deployments, base transfers, and other factors. Generally, states provide for the direct payment of child support by “garnishment” or a wage assignment. If you have such an order, submit it promptly to the military pay center. For all armed forces except the Coast Guard, this is the Defense Finance and Accounting Service (DFAS). This order must meet specific requirements before DFAS will provide a “wage garnishment” (i.e. direct payments to the family).

Health Coverage

After a divorce, the nonmilitary spouse has two possible options. The first option is no cost coverage under TRICARE. The parties must have been married for at least 20 years during the service member’s active service. This is sometimes called the 20/20/20 rule; overlapping 20 years of marriage with 20 years of service. If the 20/20/20 rule has almost been reached, this could be a good reason to hold off finalizing the divorce until the 20/20/20 rule is met. If the former spouse has other insurance coverage, TRICARE will be the secondary payor. The private insurance must first pay the bill, and then TRICARE will be billed for any amount not yet covered. If the former spouse remarries before 55, they will lose TRICARE coverage permanently.
A former nonmilitary spouse who is not eligible for TRICARE may buy conversion health coverage. This is called the Continued Health Care Benefit Program (CHCBP). If the military member leaves the service, the former spouse who buys CHCBP is covered for 36 months after the date of divorce. A former spouse may also get continuing medical coverage through CHCBP if they meets these conditions: they are entitled to a share of the service member’s pension or Survivor Benefit Plan coverage, are under 55 and not remarried, and they are able to pay quarterly advance premiums.

Military Member Support Obligations

In general, most of the laws that apply to civilian divorces are the same ones that apply to a military divorce. Military members, like civilians, have a duty to provide support for their spouses and children, and a member’s wages can be garnished to ensure the non-military spouse or child is receiving court-order support. In California, a court can order a garnishment up to 60% of the member’s disposal pay for spousal or child support. Further, if the military member does not abide by a court support order, the non-military spouse can notify their commanding officer who will in turn explain to the member the consequences of failing to abide by a court order.

Read more about divorce requirements by clicking here: Divorce Reimbursements

Read more about reimbursements by clicking here: Epstein Credits & Watts Charges Reimbursements

Thrift Savings Plan (TSP)

Service members have the option to contribute to a Thrift Savings Plan during their active service. The TSP is a retirement savings plan, much like a 401(k) plan or an IRA. Many people overlook this asset when going through a divorce. This TSP can be divided between the parties. It can also be given to one party in exchange for some other asset. The service member’s TSP statement provides information about the current value of the TSP account.

Survivor Benefit Plan (SBP)

A service member can buy a death benefit, called the “Survivor Benefit Plan” (SBP), when they retire. The person named as the “beneficiary” of the Plan, usually a spouse or former spouse, will get ongoing payments after the service member dies. Without SBP coverage, the pension payments end when the service member dies. The court can require SBP coverage upon divorce.
When buying a plan, the service member chooses a “base amount.” This base amount can be as high as 100% of the member’s retired pay or as low as $300. The Plan pays 55% of the selected “base amount” to the beneficiary. The cost of the Plan is 6.5% of the base amount. This premium is deducted from the member’s retired pay. There are two important points about SBP coverage for the former spouse: The service member can opt for former spouse coverage upon divorce by sending the proper form to the Defense Finance and Accounting Service (DFAS). But a safer course for the former spouse is to request the court to require SBP coverage and to send a copy of the order to DFAS. This is called a “deemed election.” DFAS requires a specific form plus a copy of the divorce decree and the order granting SBP coverage (if outside of the divorce decree). The court must order “former spouse coverage,” not just name the party covered. The deadline for an election by the service member is one year from the divorce. DFAS must receive the required form within this one year period. The deadline for a “deemed election” by the former spouse is one year from the date of the order granting SBP coverage. When the divorce decree grants coverage, these deadlines are the same. An SBP can name only one beneficiary. So the benefit cannot be divided between, for example, a current spouse and a former spouse. The benefit is suspended if the former spouse remarries before age 55. But the coverage will be reinstated if that remarriage ends with death, divorce or annulment. If the service member does not specify a “base amount,” then DFAS will deem the base amount to be the full retired pay.

Military Divorce Long-Term Marriage

A long term marriage entitles the non-military spouse to future medical care and insurance. Under the Uniformed Services Former Spouses’ Protection Act, former spouses can take advantage of full medical, commissary and exchange privileges if: the marriage has lasted at least twenty years; and the military spouse has been in the service for at least 20 years of creditable service (qualifies for retirement pay); and, the time in the service and the marriage overlap for twenty years. Reduced benefits may be available in limited circumstances when the marriage lasted less than twenty years.

Military Pensions

Dealing with military pensions in a divorce is complicated. Some people believe that you can’t get a share of a military pension if you’ve been married for less than 10 years – this is not true. The divorce court can give the nonmilitary spouse whatever share of a military pension that it thinks is fair. The so called “10/10 test” refers to a rule that triggers garnishment of the pension. Under this system, DFAS divides the monthly pension check, then sends the correct portion to each ex-spouse. The “10/10 test ” means that you have been married for at least 10 years while the military spouse was on active duty (or doing “creditable service” in the Guard or Reserves). Where the “10/10 test” is not met and the court still awards division of the pension, the military spouse is responsible for making the monthly payments to the ex-spouse. If you are close to meeting the “10/10 test,” you might want to delay your divorce.
To obtain your pension share check from DFAS (assuming that you meet the “10/10 test”), you will need a court order that: States the names, addresses and Social Security numbers of the parties, specifies that DFAS will make the payments, states the amount or percentage in one of four acceptable formats. This information must be sent to DFAS with DD Form 2293, along with a copy of the divorce decree.

Uniformed Services Former Spouse Protection Act

The federal government has enacted the Uniformed Services Former Spouse Protection Act (USFSPA) to determine how military retirement benefits are calculated and divided upon divorce. The USFPA is the governing statute when it comes to the division of military marital assets, and offers payment of the retired party’s pay to the former spouse. This law does not automatically authorize payment to a former spouse and requires the couple to have been married at least ten years or longer while the member of the military was actively serving. Once the couple meets the preliminary vesting requirements, a California court is allowed to treat a military member’s disposable retirement pay either as the member’s sole property or as community property giving each spouse an interest in the retired pay. California law states that a pension is community property if it was earned during a marriage.

If you were married at least 10 years; your spouse was in the military for at least 10 years; and, the there is an overlapping of both 10 years then, the non-military spouse will be entitled to a share of the military spouse’s pension to be paid directly to them by the Defense Finance and Accounting Service (DFAS). Remember, regardless of the length of a marriage, a California judge could order direct payments to the ex-spouse who had been married for less than ten years as an offset which means that the military spouse would make a payment to the non-military spouse (not DFAS).

Read more about community interest in pensions by clicking here: Community Property Pension

Read more about dividing marital property by clicking here: Financial Disclosures

Read more about dividing marital property by clicking here: Dividing Marital Property

Read more about community interest in pensions by clicking here: Community Property Pension

Read more about community interest in retirements by clicking here: Retirement Plans

Read more community interest in retirement plans by clicking here: Dividing Retirement Plans

Dividing Military Pensions

Another aspect of military divorce that civilians don’t have to deal with is the division of military pensions and other military retirement benefits upon divorcing. Under the Uniformed Services Former Spouses’ Protection Act, ex-spouses of military service members may be entitled to a portion of the service member’s military pension. It is not a guarantee that ex-spouses of military members will get a share of the retirement pension, and special rules apply to when a non-service member spouse may be eligible to take advantage of the Uniformed Services Former Spouses’ Protection Act. Only non-service member spouses who were married to an active service member for ten years or more while the military member’s was in the service, will be eligible under the act.

Read more about Military Benefits Eligibility by clicking here: Military Benefits Eligibility

Reservation of Jurisdiction for Military Divorce Pensions

A California court will order that when the military spouse retires the ex-spouse receives a portion of each pension payment. This portion is determined by dividing the number of years the couple was married by the number of years the military spouse served in the military. The result is the community property percentage of the pension plan is divided equally between the parties.

Cash-out of a Military Divorce Pensions

The cash-out method required an actuarial evaluation. An actuary is hired to review the pension and all future accumulations to determines the “present value” of the community share of the pension. The present value is a future amount of money that has been discounted to reflect its current value, as if it existed today. The present value is always less than or equal to the future value because of money’s interest-earning potential, also known as the time value of money. With a cash-out, the military spouse receives the entire pension and the non-military spouse receives other community property assets of equivalent value.

Read more about Former Military Spouse Pension Share by clicking here: Former Military Spouse Pension Share

Cost Of Living Adjustments (COLA)

Over time, the COLA increase can be substantial. If the court order gives the ex-spouse a fixed dollar amount of the pension, there will be no COLA. There is a difference between “gross retired pay” and “disposable retired pay.” “Gross pay” means a larger amount of the pension share. Some retirees qualify for disability compensation. This can reduce the amount of the military pension, also reducing the ex-spouse’s pension share. To avoid this unjust result, the court order should include a “reimbursement” clause, requiring the retiree to pay back the former spouse for any loss of pension share.

Military Member’s Additional Benefits

A California court is authorized to impute additional income to the military spouse for the value of the benefits they receive which reduce living expenses. This is most often seen when the military member receives additional pay for housing. Also, there are nuances with regard to whether the service member’s pay and allowances are taxed, all of which has an effect on the guideline calculations.

Reaching an Agreement to Settle Your Military Divorce

If communications have broken down and you cannot reach an agreement with your spouse regarding these divorce issues, you should consider using an attorney to help you in understanding the facts, laws, issues and benefits of avoiding litigation. Even though a service member may be far from home, the parties and attorney can still communicate using telephones, email, and Skype in an effort to mediate a resolution to the issues you are facing in your divorce.