There is generally no difference between a “Military Divorce” and a civilian divorce. However, there are differences which should be addressed since they can affect the final outcome of a divorce.
When military service persons get divorced the legal process is slightly different than for civilian couples and is referred to as “military divorce” or “military family law.”
When one party is in the military, a military divorce can be filed in the state where the service member is currently stationed (whether in or outside the U.S.); the state where the service member claims legal residency; or, the state where the non-military spouse resides.
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.
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.
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.
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.
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 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.
Spousal Support and Child 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.
Military Divorce Retirement Pensions
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).
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.
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.
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.
Determining a military member’s income in a military divorce requires specific knowledge and expertise. Service members income can include basic allowances for housing, expenses, and their basic pay. These additional allowances bear on the amount of child and spousal support awarded to one spouse.
Division of Military Pension
The member’s military pension is considered as an asset upon divorce. A service member who has served at least 20 years in the service is entitled to receive a military pension based on a percentage of their basic pay.
Thrift Savings Plan and Federal Employee Retirement System
TSP participants are immediately vested which means that they are entitled to their own contributions and any agency matching contribution. However, there is a minimum amount of time in service a TSP participant must meet in order to be vested in the agency automatic (1%) contributions and associated earnings in their accounts.
If a Federal Employees Retirement System employee separates from Federal service before meeting the TSP vesting requirement, the agency automatic (1%) contributions and associated earnings will be automatically forfeited to the TSP. A FERS employee who dies in service is deemed to be vested in the TSP, no matter how many years of service the employee had completed. Consequently, an employee’s beneficiary will be entitled to all the funds in the employee’s account.
For most FERS employees, the TSP vesting requirement is 3 years. However, employees serving in certain positions only need to complete 2 years of service to meet the TSP vesting requirement.
Former Spouse’s Share of Retired Pay
Former spouses who wish to receive their share of the service member’s retirement directly from the Defense Finance and Accounting Service (DFAS) must have at least 10 years of marriage overlapping the military service. DFAS requires a division order specify a dollar amount of award or a percentage of retirement pay to divide a service member’s retired pay.
An unmarried “20/20/20” former spouse qualifies for medical benefits and commissary and exchange privileges if the parties have been married for at least 20 years; the service member performed at least 20 years of service creditable for retirement pay; and, there is at least a 20 year overlap of marriage and the military service.
A former spouse who has employer-sponsored medical insurance is not eligible for military medical care or TRICARE. If the employer plan is optional, the former spouse may decline that insurance and remain eligible under TRICARE.
A “20/20/15” former spouse qualifies for medical benefits for one year from the date of the divorce or annulment if the parties have been married for at least 20 years; the service member performed at least 20 years of service creditable for retirement pay; and, there is at least a 15 year overlap of the marriage and military service. A “20/20/15” former spouse who has employer-sponsored medical insurance is not eligible for the one-year transitional medical care. However, if the employer plan is optional, the former spouse may decline that insurance and participate in the one-year benefit.
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