Military Issues related to California Divorce

In California, the fact that one of the parties is in the military presents several unique issues with regard to divorce, custody and support. Specific state and federal laws and rules will apply, and even the vernacular of persons in the military are often times foreign to lawyers who have never served in the military. Aaron M. Hudson is proud veteran, having served as a paratrooper in the 82nd Airborne and in the Arctic Infantry in Alaska. As such he is well-versed in both the language and the realities of military life, and uses that advantage for the benefit of his clients when military issues are involved.

Does being in the military provide any protection from divorce in California?

There are laws set up to protect active duty military members against being held in "default" in lawsuits, including divorce actions. These laws were enacted to protect active military from being taken advantage of while their active duty service prevents their ability to represent themselves in the proceeding.
Under the Servicemember's Civil Relief Act (50 U.S.C. App. § 521), if the Respondent is in the Army, Navy, Marine Corps, Air Force, Coast Guard, or in the Nation Guard on active duty, the court must either stay the action or appoint an attorney to represent the servicemember.  Although the court cannot enter default against the military member, the member can waive this right and make an appearance anyway. If the military member is simply making an appearance to stipulate to an uncontested action, the court cannot charge the military member the $355 first appearance fee.

The active duty spouse must be served with the summons and petition as do all responding parties. This usually means personal service, but there are other ways to accomplish service as identified in the California Code of Civil Procedure.

What are the residency and filing requirements?

To file a divorce action in California, one of the parties must have resided in California for the immediate preceding 6 months, and in the filing county for the preceding 3 months.  In the case of military members, however, that rule is satisfied if your residence or domicile is in California for the required time. (A person can have many residences, but only one domicile.)

Is it necessary to demonstrate grounds for a California military divorce?

California is a no-fault divorce state, so it is not necessary to allege or prove any specific grounds for a divorce. This applies both to military members and civilians alike.

How are military pension and other assets divided?

Along with the normal California property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

Generally, the military will not distribute a portion of the member's retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military. While the military may not distribute a portion to the former spouse, that does not mean the California court cannot make a finding that the portion of the retirement earned during the marriage is community property, and take that asset into consideration in equally dividing the estate.

What about Child Support and Spousal Support?

In California the court uses guidelines to determine child support and temporary spousal support. The same rules apply both to military members and civilians with regard to support, however, the nature of military pay, allowances and benefits presents unique challenges in making those calculations. For example, the court has authority to impute additional income to a spouse for the value of the benefits they receive which reduce living expenses (e.g. housing). Also, there are intricacies with regard to whether the pay and allowances are taxed, all of which has an effect on the guideline calculations. As a veteran, Attorney Hudson is well aware of these rules, tactics and arguments, and has an intimate familiarity with the (LES) Leave and Earning Statement.

Will the former spouse lose their military benefits on divorce?

In most cases, the nonmilitary spouse will lose his/her ID card (and privileges) once the divorce is final, with two exceptions:

• "20/20/20" former spouse. Full benefits (medical, commissary, base/post exchange, etc.) are extended to an unremarried former spouse when:
  1. the parties had been married for at least 20 years;
  2. the member performed at least 20 years of service creditable for retired pay; and
  3. there was at least a 20 year overlap of the marriage and the military service.

  (Note: If the former spouse is covered by an employer-sponsored health care plan, medical care is not authorized. However, if coverage is terminated, military medical care benefits may be reinstated upon application by the former spouse.)

• "20/20/15" former spouse. The 20/20/15 former spouse qualifies for medical benefits (no commissary, bx/px, etc.) for one year from the date of the divorce, dissolution or annulment, when:
  1. the parties had been married for at least 20 years;
  2. the member performed at least 20 years of service creditable for retired pay; and
  3. there was at least a 15 year overlap of the marriage and the military service

  (Note: If the former spouse is covered by an employer-sponsored health care plan, medical care is not authorized.)