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The Additional Legal Issues in a Military Divorce
Any divorce can be very distressing, painful and confusing. Because of the additional legal problems associated with military divorce, the complications will increase considerably if one or both spouses are military.
Although some aspects of a military divorce are very similar to a civil divorce, there are also a number of specific factors that must be considered with respect to military service. These factors include:
Serving the divorce Documents to an Active Military Spouse
In California, state law applies to military divorce, so does federal law. It is important to know that there are laws that prevent military spouses from being prosecuted for failing to follow through on an unwanted divorce. Under the Soldiers’ and Sailor’s Civil Relief Act, UCS 50 Section 521 , divorce proceedings may be suspended by a military spouse for up to 60 days after active military service. Although the military spouse may avail himself or herself from this law, the military spouse retains the right to waive the act and proceed with the divorce.
The non-military partner will have the active duty partner served with the divorce documents, as well as the summons. To maintain jurisdiction in a case in California, serving must be effected in person. If the military spouse is asked to sign and file an affidavit acknowledging the divorce case, he or she is not allowed to be served. The legal conditions for a California military divorce are similar to those for civil divorces; today’s majority of divorces are filed under “no-fault” rules, and the rationale is simply to claim “irreconcilable discrepancies.”
Figuring Out What Jurisdiction to File for divorce In
It can be difficult for a military couple to determine where to lodge a divorce. It’s unlike filing for divorce in the civilian world, which is focused solely on where you live. In fact, the military marriage story may start with a couple in one state who moved and got married in another state, may probably live in the state of California, and may even own property in a fourth state.
In another hypothetical case, the couple may have recently moved to the state of California and may not have stayed there long enough to obtain a residency permit. As a general rule, you or your spouse must be a California resident to apply for a military divorce in the State of California, or you or your spouse must be stationed in California.
Although military personnel are free to physically reside or be stationed in a state other than the state in which they are applying for citizenship, a non-military spouse cannot have the same privilege.
Generally speaking, when determining where to file you need to consider where you want to:
If you want to travel to another state to apply for divorce, it is important that you consider your travel costs, applying for the necessary documents, consulting your lawyers and be prepared to attend any court hearing if your divorce case is ends up in court. These expenses could offset any benefits you might receive from filing in another state.
Military Pay and Benefits: A More Thorough Look
The military partner may likely have the right to special military benefits. It is crucial that both partners correctly understand what those benefits are.
Those in the army will have an LES — Leave and Earnings Statement — which is simply a pay stub that lists service member rank, number of years of service, earnings, and deductions. Minimum compensation is cut off from any other incentives, including any incentive pay for a career or hazardous incentive pay. The non-taxable benefits are split into the basic subsistence allowance (BAS) and BAH. The BAS is a fixed sum for the monthly food spending.
The number of BAH varies according to the family’s status and whether or not the service member has dependents.
It doesn’t matter how many dependents are within the family, but simply that there are dependents. If the service member, spouse, and children live in military housing, the family usually does not get the BAH as military accommodation is given to military members and their families free of charge.
It makes no difference whether or not one or more minor children live with the military partner after the divorce; if the military partner is responsible for the custody of the children, then the military partner must collect the BAH at the dependents rate, if the member is living in military housing, posted to Maritime Service, or is payable above E-3. Since both the BAH and the BAH are designated as cash benefits, they must be included in the affidavit in the event of divorce. In the assessment of child custody, both the BAH and the BAS are to be included in the gross benefit.
The Military Pension
Many non-military spouses are entirely unaware of how important a military pension could be if the member of the service has been in service for 20 years or more. In fact the pension may be one of the most important assets in a long-term marriage.
For example, a captain or colonel will likely receive more than $6,000 a month in pension after 20 or more years of service. In general, it is more practical for the non-military partner to have the disability pension paid at a predetermined amount or percentage.
If the dollar sum is set, this does not mean adjustments in living costs. After the military partner has already retired from the service, the percentage method may be more successful and all the specifics are well understood.
If the marriage lasted less than 10 years, the non-military spouse will not be divorced and will be awarded a military pension. In general, military retirement benefits are not accepted as a divisible commodity until the active service member meets the retirement age at which he or she is entitled.
Military pensions cease when the military spouse dies, as a multitude of other forms of pensions, unless the military spouse accepts what is called the Uniform Services Survivor Benefit Plan (SBP), which allows the living former spouse the ability to continue collecting benefits.
The final divorce settlement will specifically determine whether an SBP has been chosen, and if so, within one year of the divorce a particular request (SBP Election Declaration for Former Spouse) must be submitted with the Retired Pay Office of the Defendant Finance and Accounting Service.
The 20/20/20, 20/20/15 and 20/20/10 Rules
In determining whether the spouse of a former military member is entitled to all military benefits (including medical insurance, commissary privileges, and business and theatrical privileges), the length of the marriage as well as the length of military service will be taken into account.
If the marriage has lasted 20 years or more, if the former spouse has completed at least 20 years of military service and if there has been an “overlap” of at least 20 years between the marriage and military service, the former spouse is entitled to all military benefits, including lifetime medical benefits.
If the marriage has lasted 20 years or more, the former spouse of a person who has completed military service has completed a minimum of 20 years of service and there has been an overlap of at least 15 years between the two, the former spouse of a person who has completed military service shall be entitled to one year of transitional health benefits.
If the marriage has lasted at least 20 years, the former spouse has served in the military for at least 20 years and for at least 10 years, and if the former spouse has been a victim of domestic violence reported by the person who served in the military, the spouse shall be entitled to all military benefits. This form of benefit is referred to as a full benefit in certain circumstances.
Filing for divorce and Asset Division for a Military Divorce in the Golden State
In the State of California, the procedure for applying for a military divorce is almost identical to that of any other divorce. The military partner must receive both a summons and a copy of the petition for divorce, as described above.
Since California is a community property state, there seems to be a clear expectation that, during the marriage, all assets and debts accumulated by the couple will be treated as collective property. Any property owned before marriage to a spouse or any property acquired after marriage by inheritance or gift is generally considered to belong only to that spouse – with a few exceptions.
Where property held in the name of both spouses before the marriage is titled after the marriage, then it will be considered to belong to that spouse. When a partner is added to the other spouse’s bank account after marriage, then all the money in that account – whether obtained before or after the marriage – is considered marital, communal, and split property. In other words, if you want to keep the property you had before the marriage in addition to the marital property, you must also keep it separately in the marriage.
Community property laws generally divide matrimonial property in half, unlike equitable division laws in many states, which are designed to divide matrimonial property equally rather than fairly. A military divorce poses problems such as the separation of the couple for long periods of time, and the more complex separation of assets and liabilities layered at the top.
Child Support Orders in a Military divorce
If minor children are in military marriage, the amount of child support does not exceed 60 per cent of the military partner’s pay and benefits, combined with any spousal support that may be given.
Apart from this clause, child support is calculated just as it would be in a civil divorce in the Golden State. Child support is based on a complex formula that takes into account both parents’ incomes, how much time each parent gets with the child or children and the tax benefits that each parent has available.
How an Experienced Riverside Military divorce Attorney Can Be of Service
For a predominantly non-military party, an attempt to circumvent military divorce is a bad idea. Unless the divorce application mentions the spouse’s military status, some form of default judgment must be set aside. Since there are possible issues regarding a military divorce in California, your main concern will be to ensure that your interests are properly protected. Your attorney will be able to accurately determine your marital assets, taking into account any medical benefits to which your military spouse may be entitled. Therefore, if minor children are involved, you must ensure both an equitable division of property and a rational custody arrangement.
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