The Additional Legal Issues in a Military Divorce
Every divorce can be very stressful, emotional and confusing. When one or both of the spouses are military personnel, the complexities can increase substantially, due to the fact that military divorces involve additional legal issues.
It is extremely important that you bring a Los Angeles Military divorce Attorney on board who has a thorough understanding of military matters and has been handling military divorce cases for many years.
Even though there are a number of aspects of a military divorce which are exactly like a civilian divorce, there are also a number of unique details that need to be addressed in connection with military service. Several of these issues include:
Serving the divorce Documents to an Active Military Spouse
State law, as well as federal legislation are applicable in your California military divorce. It is important to be aware that there are laws that exist which prevents military spouses from being judged as being defaulted for neglecting to act on an unexpected divorce. Pursuant to the Soldiers and Sailors Civil Relief Act, 50 UCS Section 521, divorce proceedings can be suspended during the timeframe that a military spouse is on active military duty, and for as much as 60 days after. Although the military spouse can take advantage of this Act, that spouse also retains the right to waive the Act and go ahead with the divorce.
The non-military spouse needs to have the military spouse on active duty served with the divorce papers as well as a summons. The service needs to be completed in person in order for a California court to maintain jurisdiction. If the military spouse should sign and file an affidavit which acknowledges the divorce action, he or she might not need to be served. The possible grounds for a California military divorce are the same as those for civilian divorces; the majority of divorces today are filed under “no-fault” laws, and simply name “irreconcilable differences” as the reason.
Deciding What Jurisdiction to File for divorce
It can be challenging for a military couple to decide where to file for divorce. It is unlike filing for divorice in the civilian world, which is based strictly on where you reside. In reality, the story of military marriage could begin for a couple in one state who moved and got married in another, could possibly be living in the state of California, and may even own property in a fourth state.
In another possible scenario, the couple might have recently moved to the state of California, and therefore may not have been in the state long enough to establish residency. Customarily, in order to apply for a military divorce in the state of California, either you or your spouse has to be a resident of California, or you or your spouse needs to be stationed in California.
Although military members are granted the flexibility to physically live or be stationed in a different state from the state where they claim residency, a non-military spouse does not have the same privilege.
In general, when determining where to file, you need to take into consideration where you:
If you make the choice to travel to a different state to file for your divorce, it is critical that you factor in the cost of travel, filing the obligatory documents, meeting with your lawyers, and, if your divorce case ends up in a trial, be prepared to attend every hearing. Those costs might offset any benefits you could gain from filing in another state.
Military Pay and Benefits: A Deeper Understanding
The military spouse might be entitled to specific military benefits. It is important that both of the spouses have a clear understanding on exactly what these benefits are.
People in the service will have an LES—Leave and Earnings Statement—which is essentially a pay stub that details the service member’s rank, number of years in the service, earnings and deductions. Base pay gets broken out from any special pay, such as any career incentive pay or hazardous duty incentive pay. Non-taxable benefits are broken down into the basic allowance for subsistence (BAS) and the basic allowance for housing (BAH). The BAS is a set amount for monthly food expenses.
The amount of BAH varies, depending on the family’s location and whether or not the service member has dependents.
It does not matter how many dependents are in the family, but simply whether there are dependents. If the military member, spouse and children reside in military housing, then the family normally does not get the BAH, since military housing is provided free to military personnel and their families.
It does not make a difference whether or not a minor child or children reside with the military member following the divorce; if that military member is liable for child support, then he or she will get the BAH at the “with dependents” rate, unless that member is provided military housing, the member is assigned to sea duty, or the member is in a pay grade above E-3. Because both BAH and BAS are classified as cash benefits, they need to be included on the financial affidavit during a divorce. BAH and BAS need to both also be included in gross income when child support is being calculated.
The Military Pension
Numerous non-military spouses are completely unaware of just how valuable a military pension can be after the service member has been in service for twenty years or more. In actuality, the pension could truly be one of the most valuable assets in a long-term marriage.
For example, a Captain or Colonel could possibly receive more than $6,000 every month in retirement benefits after serving for 20 years. In general, it is more beneficial to the non-military spouse to get the retirement pension disbursed at a fixed dollar amount or a calculated percentage.
Whatever the fixed dollar amount, it will not include cost of living increases. The percentage method could be more advantageous when the military spouse has already retired from the service, and all the facts are fully disclosed.
If the marriage has endured less than 10 years, then no division and distribution of the military pension to the non-military spouse will take place. Generally speaking, military retirement benefits are not classified as a divisible asset, until the military service member has reached the age where he or she is eligible for retirement.
Military pensions, like a multitude of other types of pensions, come to ean end when the military spouse dies, unless the military spouse decides upon what is referred to as a Uniformed Services Survivor Benefit Plan (SBP), which affords the surviving former spouse the right to continue receiving benefits.
The final divorce decree should clearly dictate whether an SBP was selected, and if it was, a specific application (SBP Election Statement for Former Spouse) must be filed within one year of the divorce at the Retired Pay Office of the Defendant Finance and Accounting Service.
The 20/20/20, 20/20/15 and 20/20/10 Rules
When figuring out whether a former spouse of a military service person has a right to full military benefits (including medical benefits, commissary, exchange and theater privileges), the length of the marriage and also the length of the military person’s service will be factored in.
Filing for divorce and Asset Division for a Military Divorce in the State of California
The filing procedures for a military divorce in the state of California are much the same as for any other divorce. As stated above, the military spouse needs to receive a summons as well as a copy of the divorce petition.
Because California is a community property state, there tends to be a strong presumption that all assets and debts accumulated by the couple during the marriage would be classified as community property. Any property that is owned by one spouse before the marriage or any property which is acquired through an inheritance or gift during the marriage is generally considered to belong to that spouse only—with a few exceptions.
If property owned prior to the marriage is titled in both spouse’s names 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 split marital assets right down the middle, as opposed to equitable distribution statutes in other states which seek to divide marital assets fairly, rather than exactly equally. A military divorce mide have such issues as the couple being separated for extended periods of time, as well as more complicated asset and liability division layered on top.
Child Support Arrangements in a Military divorce
If there are minor children in the military marriage, the amount of child support, added in with any spousal support that may be awarded, cannot exceed 60 percent of the military spouse’s pay and benefits.
Apart from this rule, child support is calculated just as it would be in a civilian divorce in the state of California. Child support is based on a complicated calculation that considers both parents’ incomes, how much time each parent will get with the child or children, and the tax deductions that are available to each parent.
How an Experienced Los Angeles Military divorce Attorney Can Help
For the most part, it is a bad idea for a non-military spouse to attempt to circumvent military notification requirements. If your divorce petition should neglect to disclose your spouse’s military status, any type of default judgment may possibly get set aside. Due to the fact that there are additional issues connected with a California military divorce, it would behoove you to ensure that your rights are properly protected. Your attorney will be able to evaluate your marital assets carefully, taking into consideration the retirement benefits the military spouse could be entitled to. He or she will then make certain that both an equitable distribution of assets, and a fair child custody agreement, if there are minor children involved.
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