Military families going through the California divorce process encounter unique issues that are not common to those divorcing who are not in the military.
The Law Offices of Edward Misleh, APC is a Sacramento law firm located in Sacramento, California that represents veterans in Sacramento, California and in Northern California with the services they need and deserve when addressing their legal matters. Our firm handles all aspects of military divorce, child custody, guardianship, child support, spousal support, community property, veteran’s benefits, and domestic violence. Call now our Lawyer Hotline. We offer a free consultation to all new clients. Call now 916-443-1267 for your free consultation.
Military Divorces in many ways are no difference from non-military divorces however, there are many significant differences. Military divorces filings must first address jurisdiction – the power of a court to hear a case. Additionally, military divorces must address military pensions, survivor benefits and thrift saving plans.
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.
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.
Each branch of the military has legal assistance attorneys who are located on most bases. In general, these attorneys cannot represent you in your divorce, but they can be helpful. The spouse of a service member can also seek the help of a military legal assistance attorney at any base and from any branch of the service. For example, the wife of a soldier can get help from a Marine Corps legal assistance attorney, and the husband of a sailor can get help at a Coast Guard legal assistance office. Or if your spouse is in the Army and stationed overseas, you can get help from a military legal assistance attorney at the nearest military base, even if it is a Navy base. If you are low income, you might qualify for legal help from a nonmilitary legal assistance office.
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).
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.
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.
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.
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.
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