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The Additional Legal Issues in a Military Divorce
Any divorce can be very painful, traumatic and confusing. When one or both partners are military, the complications can increase significantly due to the additional legal problems associated with military divorce.
It is extremely necessary that you bring on board a San Bernardino Military divorce Attorney who has a comprehensive knowledge of military matters and has been working with cases of military divorce for years.
While there are many elements of a military divorce that are almost like a civilian divorce, there are also a variety of special considerations that need to be discussed in relation to military service. Many of these problems include:
Serving the divorce Documents to an Active Military Spouse
State law, as well as federal law, applies to your military divorce in California. It’s important to be aware that there are laws that prevent military spouses from being prosecuted for neglecting to act on an unwanted divorce. Under the Soldiers and Sailors Civil Relief Act, Section 521 50 UCS, divorce proceedings may be suspended for up to 60 days after an active military duty by a military spouse. While the military spouse can take advantage of this Act, the spouse still retains the right to waive the Act and continue with the divorce as well.
The non-military partner will have the active duty partner provided with the divorce documents, as well as a summons. In order for a California court to retain jurisdiction, the service must be performed in person. If the military partner is asked to sign and file an affidavit that acknowledges the divorce proceeding, he or she does not need to be served. The potential conditions for a California military divorce are the same as those for civil divorces; today’s majority of divorces are filed under “no-fault” rules, and the explanation is essentially to say “irreconcilable differences.”
Deciding What Jurisdiction to File for divorce
For a military couple it can be challenging to decide where to file for divorce. In the civil world, it’s unlike filing for divorce, which is based strictly on where you reside. In fact, the military marriage story may start with a couple in one state who moved and got married in another state, may probably be living in California state, and could even own property in a fourth state.
The couple may have recently moved to the state of California in another hypothetical case, and therefore may not have been in the state long enough to establish residence. Customarily, to qualify for a military divorce in the state of California, either you or your spouse must be a California native, or you or your spouse must be stationed in California.
While service personnel are given the freedom to live physically or be deployed in a state other than the state in which they seek citizenship, a non-military spouse has not the same right.
Generally speaking, when determining where to file you need to consider where you want to:
If you choose to travel to another state to file for your divorce, it is critical that you factor in travel costs, file the compulsory documents, meet with your lawyers, and be prepared to attend every hearing if your divorce case ends up in a trial. Such costs might account for any advantages you could reap from filing in another state.
Military Pay and Benefits: A Deeper Understanding
The military spouse could have the right to special military advantages. It’s important that both spouses understand exactly what those benefits are.
People in the military will have an LES — Leave and Earnings Statement — which is essentially a pay stub that lists the rank of service member, number of years of service, earnings and deductions. Basic compensation is split off from any additional benefits, such as any incentive pay for a job or dangerous incentive pay. The non-taxable benefits are divided into the basic subsistence allowance (BAS) and the basic housing allowance (BAH). The BAS is a fixed sum for monthly spending on food.
The sum of BAH varies depending upon the position of the family and whether or not the member of the service has dependents.
It doesn’t matter how many dependents there are within the family, but simply whether dependents are there. If the military member, spouse, and children reside in military housing, the family does not normally get the BAH, as military housing is provided free of charge to military personnel and their family.
Whether or not a minor child or children reside with the military member after the divorce does not make a difference; if that military member is liable for child support, then he or she will receive the BAH at the rate “with dependents,” unless that member is provided with military housing, the member is assigned a maritime duty, or the member is payable above E-3. Because both BAH and BAS are classified as cash benefits, during a divorce they need to be included on the financial affidavit. Both BAH and BAS do need to be included in the gross income when determining child welfare.
The Military Pension
Many non-military spouses are totally unaware of just how valuable a military pension can be after the service member has been in service for 20 years or more. Actually, one of the most valuable assets in a long-term marriage could be the pension.
For example, after serving for 20 years, a captain or colonel could possibly get more than $6,000 in retirement benefits every month. In general, getting the retirement pension paid out at a fixed dollar amount or a calculated percentage is more beneficial for the non-military spouse.
Whatever the dollar sum set, it does not entail changes in the cost of living. The percentage approach could be more effective after the military partner has already withdrawn from the service, and all the details are completely known.
If the marriage lasted less than 10 years, then there would be no separation and allocation of the military pension to the non-military partner. In general, military retirement benefits are not recognized as a divisible asset before the member of the armed service reaches the age at which he or she is eligible for retirement.
Military pensions, like a multitude of other types of pensions, end when the military spouse dies, unless the military spouse decides what is termed the Uniform Services Survivor Benefit Plan (SBP), which gives the surviving former spouse the right to continue to receive benefits.
The final divorce decree should clearly dictate whether an SBP has been selected, and if so, a specific request (SBP Election Statement for Former Spouse) must be filed at the Defendant Finance and Accounting Service’s Retired Pay Office within one year of the divorce.
The 20/20/20, 20/20/15 and 20/20/10 Rules
When deciding if a retired military service person’s spouse is entitled to full military benefits (including medical care, commissioner’s and exchange and theater privileges), the length of the marriage and also the duration of the service of the military person will be taken into account.
The 20/20/20 Rule
If the marriage lasted twenty years or more, the member of the military service had a total of twenty years of service, and there was a “overlap” of at least twenty years between marriage and military service, then the former spouse is entitled to maximum military benefits, including lifetime health benefits.
The 20/20/15 Rule
If the marriage lasted 20 years or more, the member of the military service had a total of 20 years of service and there was at least a 15-year gap between the two, otherwise a military service person’s former spouse should be entitled to receive transitional military medical benefits for a year.
The 20/20/10 Rule
If the marriage lasted at least 20 years, the service member served for at least 20 years and at least a 10-year period occurred, and if the former spouse had been the subject of recorded domestic violence by the military service individual, the spouse may be entitled to full military benefits. Under special circumstances, that type of benefit is referred to as full benefits.
Filing for divorce and Asset Division for a Military Divorce in the State of California
In the state of California, filing procedures for a military divorce are much the same as for any other divorce. As mentioned above, the military partner will receive both a summons and a copy of the petition for divorce.
Because California is a state of community property, there tends to be a strong presumption that all assets and debts accumulated by the couple would be classified as community property during the marriage. Every property possessed by one spouse before the marriage or any property obtained after the marriage through an inheritance or gift is usually considered to belong only to that spouse — with a few exceptions.
If property owned before the marriage is titled after the marriage in the names of both spouses, it will then be considered a marital asset. If after the marriage a spouse is added to the bank account of the other spouse, then all the money in that account — regardless of whether it was acquired before or after the marriage — is considered to be split marital, community property. In other words, if you want to keep the assets that you had separate from marital assets before your marriage, you really have to keep them separate throughout the marriage.
Community laws on property generally divide marital assets right down the middle, as opposed to equitable statutes on distribution in other states that seek to divide marital assets fairly rather than justly. A military divorce has issues such as the couple being separated for extended periods of time, as well as more complicated division of assets and liabilities layered atop.
Child Support Arrangements in a Military divorce
When there are minor children in the military marriage, the amount of child support may not exceed 60 percent of the pay and benefits of the military partner, mixed along with any spousal support that might be provided.
Other than this provision, child support is measured just as it would be in a California state civil divorce. Child support is based on a complicated calculation that takes into account the incomes of both parents, how much time each parent gets with the child or children and the tax deductions available to each parent.
How an Experienced San Bernardino Military divorce Attorney Can Help
For the most part, an effort to bypass the military notification criteria is a poor idea for a non-military partner. Unless your petition for divorce would fail to reveal the military status of your spouse, some kind of default decision can be set aside. As there are potential concerns relating to a California military divorce, ensuring that your interests are adequately secured would be your primary concern. Your attorney should be able to properly assess the marital properties, taking into account the health benefits to which the military partner may be entitled. Therefore, if minor children are involved, he or she must make sure that both an equal distribution of assets and a reasonable child custody arrangement.
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