FAQs

Property Division (4)

How is a military pension divided in a divorce?

How is a military pension divided in a divorce?

Divorce proceedings are conducted by state courts and they can divide military pensions. The federal Uniformed Services Former Spouses’ Protection Act (USFSPA) allows (but does not mandate) state courts divide military retirement pensions upon divorce, legal separation or annulment.

How much of the pension gets divided?

The share of a pension to the non-military spouse could be as low as nothing or as high as half.

  • The non-military spouse might get 50 percent of the pension only if the marriage lasted the service member’s entire military career.
  • If the marriage lasted for part of the military career, the pension division will probably be prorated to reflect the time the spouse served in the military.

How an ex-spouse gets paid?

The USFSPA has a 10/10 Rule which states that if the couple was married for ten or more years while a spouse performed at least ten years of service, the government will make payments directly to the ex-spouse.

If this rule doesn’t apply, but the non-military spouse is awarded a portion of the pension payments, the service member gets paid the entire amount but will be obligated to the correct portion to the ex-spouse.

Another way to get paid is to have an actuary evaluate the military spouse’s pension to determine its current cash value. The military spouse would then give the other spouse an equivalent value in cash or non-marital property, leaving the military spouse with exclusive rights to the pension.

What is the Uniformed Services Former Spouses’ Protection Act?

What is the Uniformed Services Former Spouses’ Protection Act?

A couple filing for a military divorce has many facets to consider. With the marriage to a member of the military come many rights, protections and benefits. In June of 1981 the U.S. Supreme Court ruled that treating military retired pay as community property was unlawful. In response Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA), which decreed that state courts could allow retired military pay to be treated as property and therefore divisible between parties.

SONY DSCWith this decree of the USFSPA, it has become very important that both parties know their rights when it comes to the separation of themselves and their property, both physically and legally. Most notably of these concerns are usually the military spouse’s continued eligibility for commissary, their eligibility for a portion of the service member’s military retirement pay, and exchange and health care benefits.

The USFSPA does not automatically protect a spouse’s right to any of the above benefits. For example, the federal law allows the state to consider the retirement pay a marital asset and therefore it can be divided in a divorce action. The USFSPA also provides something called a Survivor’s Benefit Plan, which can name a former spouse as a beneficiary and provide continued income in the event of a military member’s death. Under certain circumstances a former spouse may also receive continued commissary, health and exchange benefits after a military divorce is ordered.  If you are seeking a military divorce and would like to know more about the benefits, protections or rights afforded under the Uniformed Services Former Spouses’ Protection Act, contact an experienced local Family Law attorney today.

What happens with our pets during and after the divorce?

What happens with our pets during and after the divorce? What if I don’t trust the other side to take proper care of them?

A: For some couples, pets are an integral part of the family, but they can be another source of contention during a divorce. Under the law, pets are considered property, and they are essentially treated no different from a car or furniture in a divorce. Thus, there is no such thing as joint custody when it comes to pets, unless the spouses work out an arrangement themselves.

If a pet was purchased prior to the marriage, it is considered separate property, but if the pet was obtained when the individuals were married, it becomes community property.  Absent a prenuptial agreement, the court will generally divide community property evenly, so what happens to pets if there is no prenup in place?

In a litigated divorce, if the pet is considered community property and there is no prenup, the judge will determine who gets the pet by deciding who the primary caregiver is, and who has the strongest emotional bond.  Your case can be strengthened with testimony from family members and therapists, and by providing receipts from vet bills and other pet-related expenses.

To best serve your pet’s needs, you should first try to amicably work out an arrangement with your spouse, or mediate the issue outside the confines of the court.  Once you’ve come up with a decision, you can add this to your marital settlement agreement to finalize the issue of pet custody.

If during the divorce negotiations you feel that your pet’s safety is in danger, California law allows pets to be included in domestic violence restraining orders.  A restraining order can prevent the restrained person from coming into close contact with your pet, ensuring its safety until decisions can be made regarding their ultimate custody.

All things considered, pet custody issues can quickly become complicated, and it’s in your best interest to seek the advice of an experienced family law attorney to help you through the negotiations.

 

Will I Be Responsible for My Husband’s Business Tax Debt?

Will I Be Responsible for My Husband’s Business Tax Debt?

We have a lot of tax debt incurred during the marriage due to my ex’s business. Will I still be responsible for it after the divorce?

Nobody wants to pay for a debt that they are not responsible for. Many people own small businesses and when you get divorced you will have valid concerns about taxes and other liabilities that your former spouse may have. Tax liability can be a very tricky area of the law to navigate and it is in your best interest to have experienced legal counsel advising you. Some factors that may affect your potential tax liability for your ex’s debts include:

  • Whether or not the business is classified as separate property or community property
  • Are you receiving a portion of the business or business proceeds as part of the marriage settlement agreement?
  • When the business was acquired by your ex. Before or during the marriage?
  • If the business was started during the marriage, was the business purchased with funds that are considered community property under California law?
  • Like property acquired during marriage, debts that are incurred during a marriage are presumed to be community property and are thus the responsibility of both spouses.

Community property is any property acquired by either spouse during marriage and any property bought with those earnings will be considered community property that is owned equally by both spouses. Similarly, debts incurred during marriage are generally debts of both spouses. If the business was a community property asset when the tax debt was incurred, then you are likely on the hook for at least a portion of the debt.

If the business was acquired by your ex prior to the marriage then the business and the debt may be considered separate property. Married people can own separate property that only belongs to them individually. If, for example, you or your ex inherited the business during your marriage then it would likely be considered separate property and the tax burden would only belong to the spouse who inherited the property.

Property classification issues can be quite complicated especially when there are overlapping state or federal tax considerations. It is in your best interest to contact an experienced family law attorney who can assist you with. The attorneys at Fisher & Van Thiel have years of experience handling complex divorce cases where property and debts have to be distributed.  Call our office today for a consultation!