Military Divorce Process in California
The process for obtaining a military divorce is basically the same as maintaining a civilian divorce. It is a relatively simple process but does however require that a certain few criteria are met. If a couple has been married for less than five (5) years, does not have children, does not own real estate and has relatively little to no debt, they may qualify for a summary dissolution.
A summary dissolution is a simplified version of a regular dissolution and normally does not require a court appearance from either party. Both parties to the divorce must come to an agreement as to how any assets, property or debts will be divided. This agreement along with other required documents and the joint divorce petition are then filed with the court which begins the process. Per the divorce laws of California a six (6) month waiting period is required before a divorce can become final.
Military Divorce Process
If it becomes apparent that you and your spouse do not qualify for a summary dissolution for the above stated reasons, you can still file for a typical dissolution of marriage.
The standard dissolution process typically looks like this:
- One spouse (called the petitioner – either the military or civilian spouse) files a divorce petition and serves it on the other spouse (called the respondent). Service usually requires personal delivery of papers however there may be exceptions.
- In uncontested cases, the active duty spouse may not have to be served as long as he or she signs and files a waiver acknowledging the divorce action
- Residency Requirements – You or your spouse must reside in California, or your or your spouse must be stationed in California
- Grounds for military divorce mirror those for a standard divorce – irreconcilable differences or incurable insanity.
- The respondent, or party who the papers were served upon, has thirty (30) days to file a response to the petitioner
- Either of the parties may request temporary orders by filing an Order to Show Cause hearing. This could involve the judge making temporary orders regarding child custody, spousal support or restraining orders if necessary.
- Both parties then individually engage in discovery – a process where relevant information pertaining to the divorce and situational facts are exchanged. A required face of the discovery process is preparing a Preliminary Declaration of Disclosure. This court form where each spouse lists all their community and separate property for later distribution. Parties are also required to exchange financial declarations pertaining to their income and expenses they incur.
- After discovery is complete, the spouses and their attorneys will discuss settlement of the case. If both parties can come to an agreement, one of the attorneys will prepare a Marital Settlement Agreement, which will outline and clarify all details and terms of the agreement. This is a contract signed by both spouses and their attorneys.
- If parties are not able to come to an agreement and reach a settlement regarding the terms of their dissolution, a trial will need to take place.
- After the trial is concluded, or after the parties sign the agreed upon Marital Settlement Agreement, one of the attorneys will prepare a Judgment of Dissolution of Marriage. The Judgment will contain all of the court’s orders and outline the terms of the dissolution. When the judgment is filed, the divorce is considered final, and both attorneys will receive a Notice of Entry of Judgment.
Uniformed Services Former Spouses’ Protection Act
The USFSPA was created as a response to earlier legislation denying states the ability to regulate the status of military member’s assets. The Act guides the military to accept state statues on addressing issues such as child custody, military pension and pay, and child and marital support. While states have always had the power to treat retirement and pension plans just like any other marital asset, the USFSPA permits the states to classify military retired pay as property, as opposed to income.
Calculating Marital Share for Active Military Members
The amount of pension which a former spouse is entitled to depends on a variety of calculations. There are different methods of calculating this percentage and the document filed with the court must clarify the formula used in order to come up with the proposed amount of payment.
The three methods of calculating pension payment are:
- Net Present Value – most commonly used if a spouse wants a form of buyout up front
- Deferred Distribution – a share amount is calculated during the divorce, but the receipt of funds is deferred until the service member retires
- Reserve Jurisdiction – the most common method which shares the former spouse’s receives and is calculated at retirement
Direct retirement payments are also made available through the Defense Finance and Accounting Services. In order for a former spouse to be eligible to receive direct retirement payments, the couple must have been married 10 years overlapping 10 years of service. For example, if a couple was married for 15 years, and one spouse was in the military for 8 of those years, the other spouse would not be entitled to direct payment of DFAS. If the same couple was married for 12 years and the military spouse was active for 10 of those years, the other spouse would be entitled. This requirement may vary depending on the state law, however California requires a 10 year service period.
If the non-military spouse does not qualify for the DFAS that does not completely eliminate their eligibility. To receive a portion, the criteria and basis for direct retirement payments would need to be outlined in the divorce settlement agreement. Military retired pay can also be accounted for separately or in addition to child or martial support. There is a maximum amount of pension income a former spouse can receive, which is capped at 50% of the military retirement pay.
If you have questions regarding the military divorce process, or would simply like to know the best way to proceed, call an experience California family law attorney. An attorney with experience and knowledge of the laws of military divorce is essential to ensure you are fairly represented and your rights are secured. Call the offices of Fischer & Van Thiel, LLP today at 760-722-7669 to see how our representation can best assist you in this time of need.