How to File for Military Divorce in California
When a family has a spouse serving in the military and there is a divorce, there are unique problems that arise. Understanding that military divorces are different and how those issues can be complex and different will help lead to decisions that are much more fair and better. A military divorce isn’t like other divorces because additional legal matters are involved.
Filing for Military Divorce in Oceanside
Typically, divorce is filed for in the state where one or both spouses has set up legal residence. The spouse who files for a divorce usually seeks divorce in the state where they live. When it comes to a military divorce things are different. Before deciding in which state to file divorce, you need to know how that particular state in question handles military pension divisions during a divorce proceeding. There is a federal law that governs dividing military pensions. It is known as the “Uniformed Services Former Spouses’ Protection Act” (USFSPA).
This particular law says that the state where the military service member lives is given legal power to divide the military pension during a divorce. If you seek a divorce somewhere that is not the legal residence of the military service member, the court that hears the divorce proceedings might not be given the right to handle the division of the pension. You should be aware that the service member can agree to the court’s military pension division. While some laws vary from state to state, some states do have additional laws that might impact how a military pension is handled in a divorce. Before divorce is filed anywhere, learn how the particular state in question might handle dividing a military pension or other assets pertaining to military service during the divorce proceedings.
Can a Military Service Member Delay the Divorce Proceedings?
When a spouse files for a divorce, the other spouse must file an answer that is called a formal response, within a set time frame which is usually a few days. After that response has been filed, the court goes ahead with scheduling the next steps in the divorce case. These next steps of the divorce proceedings might include mediation or hearings. If one party is serving on active military duty, the federal law can change the deadlines and normal court schedules. This particular law is the Servicemembers Civil Relief Act” (SCRA).
Active duty military can request what is called a stay for court proceedings, which puts the proceedings on hold if their military duties keep them from responding to the current court action. Other kinds of court cases involving a military service member can have a “stay” placed on them as well. The initial stay is for a 90-day time period. After that initial stay has expired, the court can give extensions as it sees fit. However, the court will not postpone divorce proceedings forever. The stay was created to delay court proceedings for as long as the military duties impact the service member’s participation in the divorce court proceedings.
A request for a stay must be done in writing. Your military divorce attorney can provide you with an example of a sample request for a stay along with a cover letter. Your military divorce lawyer will help you with filing the request for a stay. Rules vary from state to state and different laws might require the letter be drafted in a different format. A military divorce attorney in your state will know the proper format and procedures.
Will the Military Provide Me With a Military Divorce Attorney?
Each military branch has legal assistance attorneys or JAG lawyers. In most cases, JAG attorneys are available on each military base. While these attorneys cannot represent you in your divorce hearing, they can provide divorce related assistance. These military lawyers can:
• review legal documents and revise them if necessary
• conduct negotiations on your behalf
• write letters on your behalf and
• answer questions, including those asked by your private attorney if you have retained one
A service member’s spouse can also seek the assistance of a JAG lawyer at any military base and from any military branch. As an example, a Marine’s wife can seek the help of an Army legal assistance attorney while the husband of a soldier might get help from a Marine Corps legal assistance office. If you have a spouse serving in the Army overseas, you can get the help from a military legal assistance lawyer at the closest military base, whether it is a Naval base or an Air Force base.
If you fall into the low-income category, you might qualify for legal assistance from a non-military legal assistance office. If you can afford the costs of legal services, you can enlist the help of a private divorce attorney.
How are Child Support Amounts Determined and How is it Collected?
If children resulted from your marriage, child support will result from your divorce. Child support amounts are set by state law. After the court has set or determined the child support amount that must be paid, it can only be changed by a court of law. Another hearing in the court system would be required to change the set amounts. Before the amount of child support has been set by the court, you can seek direct assistance through the military. Military members must pay enough child support to provide for their children. Each branch of military service, except the U.S. Air Force, has set rules established determining how much the service member parent must pay in child support. To get help collecting child support, contact your spouse’s commanding officer or the legal assistance attorney on the military base. The court that is handling your divorce proceedings or who is overseeing the case for child support can make its own decision about how much child support must be paid according to state laws.
Usually, the child support guidelines for the state where the divorce or child support claim are used to determine the amount of child support. When a military family is involved in divorce proceeding, the court needs to understand the different elements of a military service member’s pay in comparison the pay of a someone working in a non-military role. The court must understand the pay amount for the service member might change because of base transfers, deployments, and several other factors. States usually require or set it up for child support to be paid directly by wage assignment or by garnishment. If such an order has been executed, you must submit the order right away to your military pay center to ensure pay is issued. All branches of the armed forces – except the Coast Guard – use the Defense Finance and Accounting Service (DFAS) to take care of military pay distribution. Any child support order must meet the specified requirements of DFAS before payments will be taken from the service member’s check and paid directly to the family. Just providing your payroll department with a copy of the divorce papers might not be sufficient for the military to start deducting child support from the check and sending it to the payable entity. Your local military legal assistance officer will be able to help you with this aspect of your case so you can produce a document that DFAS will be able to use to act on the child support order.
Health Care Coverage After My Divorce
There are two different health care coverage options for the spouse not serving in the military following a divorce. The first option would be to get coverage through TRICARE at no cost. To be eligible, the couple must have been married at least 20 years while the military spouse was in the active service. This is known as the 20/20/20 rule. The 20/20/20 rule means 20 years of military service, 20 years of marriage, and 20 years of marriage and service that overlap. If the 20/20/20 rule is close to being attained, it might be wise to wait on finalizing the divorce until this rule is met. If the spouse has private insurance coverage, TRICARE will serve as the secondary insurer. Any private insurance must pay the medical bills first, then TRICARE is billed for any uncovered expenses. If the former military spouse gets married again before turning 55, he or she will permanently lose their TRICARE coverage.
A former spouse who is not in the military who doesn’t meet the eligibility requirements for TRICARE might choose to purchase conversion health coverage. This specific kind medical insurance coverage is known as the Continued Health Care Benefit Program (CHCBP). If the service member leaves military service, the former spouse who purchases CHCBP is covered for three years after the divorce is finalized. A previous spouse might be eligible to get continuing coverage through CHCBP if these specific conditions are met:
• The former spouse must be entitled to part of the service member’s pension or be eligible for Survivor Benefit plan coverage
• Has not remarried if younger than age 55
• Must pay quarterly premiums in advance, and
• Meets the applicable application deadlines
The coverage scope is very much like the coverage offered to federal employees. The cost is the federal employee’s cost of the insurance premium plus the federal agency’s share of the premium plus an additional 10%. As of 2011, this was an affordable amount totaling less than $350 monthly.
Thrift Savings Plan
During military service, service members are given the option to make contributions to retirement savings plan, which is known as a Thrift Savings Plan. This is an optional retirement savings plan, which is much like an IRA or 401(k) plan. Often, this asset is overlooked during divorce proceedings. The court can order the division of this plan. Or, one party might receive the entire plan in exchange for another asset. The service member’s Thrift Savings Plan statement should indicate the current account value.
Survivor Benefit Plan
The Survivor Benefit Plan (SBP), which is a death benefit, can be bought by the service member upon retirement. Only one beneficiary is designated, which is usually the current or former spouse. The payments will be distributed after the death of the service member. Without SBP coverage, all pension payments end at the death of the service member regardless of whether or not the spouse is surviving. During a divorce case, the court can require the purchase of SBP coverage.
When the plan is purchased, the service member selects a base amount, which can be as low as $300 or as high as the full amount of the retired pay. The plan pays the beneficiary more than half of the selected base amount. The plan costs 6.5% of the chosen base amount. The SBP premium is deducted from the service member’s retirement pay.
There are two important things about SBP the former spouse needs to be aware of:
Election – The service member can choose to purchase former spouse coverage after a divorce by turning the right paperwork in to DFAS. To make certain this happens, the former spouse can ask the court to order SBP coverage and send that order to DFAS. This action is called deemed election. A specific form is completed and must be returned with a copy of the divorce decree and the SBP coverage order to DFAS. The court cannot just include the name of the party to be covered, but instead must specify former spouse coverage and send in all the required documents.
Notification Deadlines – The service member must elect SBP coverage within a year after the divorce. The required form must be received by DFAS before the one-year time frame expires. The deadline for a deemed election by the former spouse is one year from the date of the order that grants the specified SBP coverage. When the divorce documents grant coverage, the deadlines remain the same.
Only one beneficiary can be named for an SBP, so the benefit cannot be divided between the former spouse and a current spouse or two former spouses. The benefit is suspended if the former spouse gets married again before turning 55. The benefits coverage is reinstated if the spouse’s marriage ends in the death of the new spouse, or if it results in annulment or divorce. If the service member doesn’t specify what he or she wants as the base amount, DFAS will make the base amount as the full retired pay.
Military pensions are often complicated when it comes to divorce. You should get the assistance of a military divorce attorney experienced in dividing retired pay for military service members to ensure this matter is properly handled. Some individuals don’t think you are eligible to get a share of a spouse’s military pension if you weren’t married more than 10 years, but that is not the case. The divorce court has the ability to distribute a non-military spouse however much of the pension they believe would be fair. The court’s decision can depend on several things.
The 10-10 test refers to a rule that leads to garnishment of the pension. Using the 10-10 rule, DFAS handles the division of the monthly pension check, distributing the correct amount to each of the ex-spouses. The term 10-10 indicates that you were married at least 10 years while the military spouse served active duty or was participating in creditable service in either the Reserves or Guard. When the 10-10 test is not met but the court awards a pension division, the spouse in the military has the responsibility for directly making the required payments to the former spouse. If you are near the time required to meet the 10-10 test, you might want to put off finalizing your divorce.
If you meet the 10-10 test requirements, you must provide a court order to show:
• The names, addresses, and Social Security numbers for involved parties
• Specifies that all payments will be made by DFAS
• States either the percentage or amount in an acceptable format
• Is sent with a copy of the divorce decree and DD Form 2293
• Complies with all the DFAS regulations
To make sure any problems are addressed right away, submit the paperwork to DFAS quickly.
Our Skilled Military Divorce Lawyers Can Help
When getting a divorce and one of the parties has served in the military, you need to consider the different legal issues that impact military families and work with a military divorce attorney. The Law Offices of Fischer & Van Thiel in Oceanside, California is experienced in handling military divorces. Contact our military divorce attorney today to learn how we can help protect you and your rights.