Military Divorce (3)Military Divorces
A significant number of marriages to military personnel end in divorce. About 7.2 percent of military women reported a divorce in fiscal year 2013, according to Department of Defense (DoD) data. The overall divorce rate among men and women was 3.4 percent. For every 100 troops who were married at the start of the fiscal year, about three or four notified the DoD about a divorce and officially changed their status for purposes of military benefits.
A divorce can be emotionally wrenching, especially when children are involved. Add to this the stress of a family divided by overseas deployments, it’s a situation that needs to be handled with care. Depending on the circumstances, a military divorce might not be any no more complicated than two civilians getting divorced (especially if there are no children and the military spouse has not served for a long time), there are laws that concern only service members and their spouses.
Military Divorce Law
Military divorces are governed by both state and federal laws.
- Federal laws can impact in which jurisdiction the divorce takes place or how a pension (if there is one) might be apportioned,
- State laws may spell out how much alimony and child support will be paid.
Active-duty service members can get some protection from divorce proceedings in most cases. Under the Servicemembers Civil Relief Act (SCRA), members of the military can seek postponements while on active duty or for 60 days following active duty (if the judge agrees). The SCRA does not affect the judge’s decision on the merits of a divorce case, only if a delay will be granted.
Divorce filings and procedures
Before a court can grant a divorce, it must determine if it’s the right court (or jurisdiction) with authority to render a judgment on the case. For divorces, jurisdiction is normally where the couple lives. For California, the couple must reside in, or a spouse must be stationed in, the state for there to be jurisdiction in a divorce case.
Federal law doesn’t impact the grounds for a divorce. Under California law, a divorce can be contested (there isn’t an agreement to divorce, or all the related issues such as alimony and child support haven’t been resolved) or uncontested (both spouses agree to divorce and agree to resolved related issues).
The spouse on active duty needs to be personally served with a summons and a copy of the divorce action for a California court to have jurisdiction over the case. If the divorce is uncontested, personal service is not required if the active duty spouse signs and files a waiver affidavit acknowledging the divorce action.
Who gets what from whom
State law will govern property distribution (though federal law can come into play if retirement benefits are involved), child custody and support issues. Under California law, child support and spousal support/alimony awards cannot be more than 60% of a military member’s pay and allowances. California child support guidelines, worksheets and schedules are used to determine the amount of child support to be paid. There also special rules by the military concerning alimony and child support designed to ensure a service member’s family support obligations beyond a divorce or separation.
VA disability benefits will not be directly allocated to the non-service spouse. However, the judge may consider the disability payments when calculating child support, maintenance and property and debt division.
Military pensions, like civilian pensions, are subject to division between spouses in the event of divorce. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), state courts may treat military retirement pay as either sole or community property. California law states a pension is community property if it was earned during a marriage.
Who gets how much of the pension is up to California law, which divides up the pension either by “reservation of jurisdiction” or “cash out.”
- Reservation of Jurisdiction: This is the more common way to handle pension plans. Due to a court order, when the military spouse retires the ex-spouse receives a portion of each pension payment. This portion is determined by dividing the number of years the couple lived as husband and wife by the number of years the military spouse served in the military. The result is the community property percentage of the pension plan.
- Cash-out: This method involves obtaining “actuarial evaluation.” An actuary is hired to review the pension as well as the accumulations on the pension account, and determines the “present value” of the community share of the pension plan. With a cash-out, the military spouse receives the pension in its entirety and the other spouse receives other community property assets of equivalent value.
Payment of the ex-spouse’s share of the retirement pension is paid directly by the Defense Finance and Accounting Service (DFAS) if there was at least ten years of marriage with an overlapping ten years of military service. No matter how long the couple was married, a judge could order direct payments to the ex-spouse who had been married for less than ten years as an offset (the military spouse would make the payment, not DFAS).
In addition to pension benefits, ex-spouses of retired military personnel may also get full medical, commissary and exchange privileges if,
- The couple was married for at least twenty years,
- The service member performed at least twenty years of creditable service toward retirement pay, and
- There was at least a twenty year overlap of the marriage and military service.
Given the many issues involved in a military divorce, especially when pension benefits are involved, spouses should retain attorneys to represent their interests. This isn’t just to prepare for a TV style, scorched earth courtroom scene of a divorce, but to help the parties resolve their differences.
If communications have broken down between the couple, it may be easier for attorneys to help their clients understand the facts, laws, issues and benefits of avoiding litigation. Even though a service member may be far from home, because of e-mails, Skype and telephone calls, there can still be communications with an attorney. If issues can’t be worked out, mediation is often successful at resolving difficult divorce issues.
Servicemembers Civil Relief Act (SCRA) and Family Law
The Servicemembers Civil Relief Act of 2003 (SCRA), formerly known as the Soliders and Sailors Relief Act of 1940, is meant to protect military service members from being taken advantage of while away from home serving their country. The law could affect a family law case significantly.
The idea of the SCRA is to protect service members from legal issues at home so that they can focus on their military tasks at hand. The law allows service members to get a delay in any court proceeding that might affect their rights. When a member of the military is sued in a divorce case and they are stationed in another state or another country, the matter can be delayed for a reasonable time to allow that person to more fully participate in the process.
The SCRA protect all active members of the Army, Navy, Air Force, Marines, Coast Guard, officers of the Public Health Service assigned to the Army or Navy, reservists on active duty, dependents and persons or businesses who may be liable along with the member of the military.
How does the judge learn a party is deployed? When the divorce complaint is filed, the person filing it must swear out an affidavit stating whether or not the other party is serving in the military. If the affidavit states that the person is in the military, the court cannot enter a judgment against the person unless and until the service member appears in court or a lawyer is appointed by the court to represent their interests.
If the service member comes back to learn the legal process is over without any notification because the affidavit was false, the party filling it out could face perjury charges. The party could also request that the order be vacated.
If the service member is not available, delays are available
If the military member makes a request, a 90 day delay in the proceeding is normally automatically granted. If more time is sought, the service member must establish they have tried to get a leave of absence to attend the scheduled hearing but were unsuccessful. If that request isn’t granted, the court needs to appoint an attorney for the service member. The length of the delay that must be “reasonable” which depends on the situation, but it can be no longer than the length of the service member’s duty plus three months.
The SCRA isn’t a tool to dismiss a divorce action, though it may delay it
SCRA does not limit the power of judges to make decisions on the merits of the case and does not empower a member of the military to have a divorce case dismissed or have court order in his/her favor just because they are in the military. A court can stay the proceedings if a party’s military service has a material effect on the ability to defend the divorce case. A judge can also deny a stay if the military service has no material effect on the ability to defend against the litigation.
The good and the bad
This extra time is a double edged sword. It may be very helpful to the military member overseas, but will put off the eventual resolution for the spouse back home.
- It will delay a judge from issuing orders.
- If you’re not in the military, these delays can lead to frustration, because the law gives the other parent more time to respond and create legal papers. It also makes the process longer.
There may be advantages to the non-military spouse of a delay, especially if the spouse in the military is close to twenty years of service. If the spouse has only been in the service a short time, the non-military spouse, after a divorce, loses military entitlements, including base housing or a housing allowance, commissary privileges, post exchange privileges and on-base or post medical care.
If there is a long term marriage to a service member with a twenty year career, the spouse may be able to retain rights to future medical care and insurance (just not on base). Under the Uniformed Services Former Spouses’ Protection Act, former spouses can take advantage of full medical, commissary and exchange privileges if,
1) The marriage lasted at least twenty years,
2) The spouse in the service has at least 20 years of creditable service for retirement pay, and
3) The time in the service and the marriage overlap for twenty years. Reduced benefits may be available in limited circumstances when the marriage lasted less than twenty years.
Even if there are delays, decisions can still be made
Judges need to balance the protections of the SCRA and the needs of the family at home. Children’s needs often trump the SCRA’s provisions when orders are written. These can concern outstanding issues concerning children that need immediate attention so that the children at issue can have some stability and predictability.
Balancing the interests of all involved
The SCRA prohibits a service member being defaulted by a judge, which goes to the heart of the law. A default is a decision entered in favor of the party that is in court, against the party who has not appeared. This provision applies in family law cases, including divorce. While a service member is deployed away from the jurisdiction, generally speaking, a judge shouldn’t sign an order in favor of the civilian spouse if the service member parent fails to appear.
If the military member has been defaulted, and he or she had no knowledge of the proceedings, under the SCRA, once the person is released from active duty, there is 90 days to ask a court to open a default judgment that was entered while the person was deployed.
If you’re the civilian spouse and you feel like you’re swimming up against the tide of the SCRA, you still have many advantages. You should have access to the courts. You can still argue the other parent does not have a valid reason for a delay and is abusing the law to get unwarranted delays.
How Military Divorce is Different than Standard Divorce
Many couples are mistaken when assuming that a military divorce is the same in regards to process and requirements as a standard civilian divorce. This is not the case and couples should educate themselves on the varying differences to ensure they move forward with the process in the most efficient way possible. A California Military divorce creates many issues a couple must properly address or be aware of in order to proceed with obtaining a dissolution.
Military Divorce Protections
Members of the military are afforded certain protections from California divorce law, such as protection from falling into a “default” dissolution status. According to California Family Law a divorce falls into a default status if a party fails to respond to the party who petitions for a divorce. Active military members, on the other hand are essentially given relief from falling into default status and becoming divorced without their knowing or decision.
In the discretion of the California court, under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521, if a person is serving in the Army, Navy, Marine Corps, Air Force, Coast Guard, or in the Nation Guard on active duty, their military divorce process can be stayed or delayed for the entirety of the active service member’s deployment and an additional 60 days thereafter. This protection is automatically awarded to a service member (usually those serving during a time of war) however can be waived if the active duty party wishes to proceed with the divorce.
Military Divorce Residency Requirements and Stipulations
When a couple wishes to file for a military divorce there are residency requirements that must be fulfilled. A military divorce can be filed in one of three jurisdictions: the legal residence of the military member; the legal residence of the spouse; and the state that the service member is stationed in. Typically to obtain a Military Divorce filing in California the following is required:
– You or your spouse must reside in California
– You or your spouse must be stationed in California
Military members are afforded the ability to live or be stationed in another state from which they claim residency. The non-active spouse is not afforded the same privilege.
Serving an Active Military Member with Divorce Papers
Similarly to California divorce laws, the grounds for a couple to file for a divorce are the same. As California is a no fault state, there is no requirement for either party to show or prove fault. Parties must file under one of two ground: irreconcilable differences, meaning the marriage cannot be saved in their opinion, or more rarely is the ground of incurable insanity.
As with standard California state law for civilian service of process, the active duty spouse is required to be served with the summons, as is the responding party. Proper service is usually delivered personally but there are other ways to suffice service of process as identified in the California Code of Civil Procedure. A family law attorney who specializes in military divorce can help either party effectively ensure they meet service requirements properly.
Division of Assets in Military Divorce
In the late 1970s and early 1980s, some state courts started treating military retired pay as “community property,” often awarding a portion of the pay to the previous non-military spouse. One such case from California found its way through the federal courts to the Supreme Court, who ruled in McCarty v. McCarty (1981) that federal law did not allow retired pay to be treated as joint property. In response to this judgment and influential ruling, Congress passed the Uniformed Services Former Spouse Protection Act quickly thereafter, in 1982. This act allowed and currently allows state courts to treat disposable retired pay either as property solely of the member, or as property of the member and his spouse according to the state law and its discretion.
Members of the military have a few unique assets that don’t necessarily apply to civilians specifically, but can be incredibly valuable. Most notably would be the service member’s pension and retirement fund. In addition to the California laws regarding the division of assets, 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 USFPA is the governing statute when it comes to the division of military marital assets, and offers payment of the retired party’s pay to the former spouse. This law does not automatically authorize payment to a former spouse and requires the couple to have been married at least ten years or longer while the member of the military was actively serving.
Child Support and Alimony for Military Divorce
Most of the laws regarding a military divorce are similar to a civilian divorce when it comes to child support and the allocation of alimony. However there are a few unique challenges regarding military divorce specifically. For example, a military divorce provides a stipulation stating the child support and alimony payments cannot exceed 60% of the serving member’s pay and allowances. Child support and alimony amounts are determined by the normal California divorce guidelines.
The court is also authorized 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 nuances with regard to whether the service member’s pay and allowances are taxed, all of which has an effect on the guideline calculations.
How a Family Law Attorney Can Help You with your Military Divorce Matter
In times of emotional stress, matters of dissolution can be complicated, especially for those who have to configure requirements and specific stipulations that surround a military divorce. A California Military divorce may require certain things or afford certain protections that couples may be unaware of. If you have questions regarding residency requirements, how to serve an active military member, the allocation of alimony or child support in a military divorce, or whether or not retired pay will be awarded to a non-military former spouse,