I am a former Navy wife so I have been through the very challenging process of a military divorce. When I was divorcing I was not aware of the laws pertaining to the military when it came to going through the divorce process.
After much research as to the procedures involved in the military divorce process, I was able to communicate efficiently with my attorney to aid me in having a smooth divorce. That was over 15 years ago and since that time, I have been able to assist many military families through what may be one of the most difficult times in their lives.
How is a military divorce different than a standard divorce?
Every marriage has their challenges and it is hard for even the happiest couples to remain together. Military couples experience unique difficulties in maintaining their marriages. They need to work to maintain the romance while one spouse is away from home for long periods of time. When the spouse returns, the family must change the dynamic to make the military spouse a significant part of the household. In some families, the coming and going of the service member makes the bond between the couple stronger. In others the separation can drive a wedge between the couple. Just as the military marriage is unique, the military divorce comes with its own complications. As all branches of the military are part of the Federal Government, the laws of the military will preempt any state laws which govern divorces.
I am part of the military. Will JAG give me free legal service? How will the Soldiers and Sailors act protect me?
Many servicemen believe falsely that JAG will provide them with free legal assistance. While they may offer some guidance, they are not capable of assisting them through the divorce process.
I have seen clients, and even my former spouse, erroneously believe that the Soldier’s and Sailor’s act will protect them in a child support or a divorce action based on information that they may have obtained. The Soldiers and Sailors Act will not prevent one spouse from divorcing another. It will, however, prevent a party from proceeding by default without providing counsel for the military spouse.
If a divorce is filed, the court may grant a 90-day stay in the proceedings in order to accommodate the military spouse. If the military spouse requests a stay, the court must grant a minimum 90 day stay, only if both of the following requirements are met: (1) The spouse must submit a letter declaration setting forth facts which state the manner in which their present military duty requirements materially affect their ability to appear. The declaration must also state a date when the spouse will be available to appear; and (2) The spouse must submit a letter or declaration from their commanding officer which verifies that their military duty prevents appearance and military leave is not authorized at that time.
My spouse is in the military. Will I receive his/her pension?
Military pensions are covered by ERISA and therefore are subject to distribution under Federal law. Although California is a community property state, and California pensions are deemed to be community property, subject to division in a divorce, California courts do not govern the award of military pensions. The California courts are bound by the Supreme Court ruling in McCarty V. McCarty, 453 U.S. 210 (1981), which holds that military retirement pay may not be treated as community property.
The Federal Government has enacted an act which protects former spouses of military members by allowing a court which has jurisdiction over the servicemember (either the state they are stationed or the state which they consider to be their domicile) to, “treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court. A court may not treat retired pay as property in any proceeding to divide or partition any amount of retired pay of a member as the property of the member and the member’s spouse or former spouse if a final decree of divorce, dissolution, annulment, or legal separation (including a court ordered, ratified, or approved property settlement incident to such decree) affecting the member and the member’s spouse or former spouse.” 10 USC § 1408
So what does this mean for you….if the military member is living in California, the California Courts MAY (but are not required to) treat the pension as community property. They may also choose to treat the pension as the property of the military spouse. If there is other property or accounts available, the court may also award the pension to the military spouse and award other property to a non-military spouse. This is sometimes the cleaner way to handle this issue.
How does military pay affect support and custody?
Since Military pay is complicated, many courts don’t know how to award child support or spousal support appropriately. Support is based on the taxable base income of the servicemember combined with the non-taxable COLA, BAH, BAS, Combat pay and other allowances. Per diem and clothing allowance bonuses are not included in any formulas used to calculate support. In order to obtain accurate orders, it is imperative to have the current LES (leave and earnings statement) of the military spouse. If your spouse will not provide you with their LES, there are ways to calculate approximate support based on the military pay-tables which I have access too online.
Since I have been through my own struggles with support, I am able to allocate the various allowances appropriately in order to assist my clients in obtaining an accurate support figure.
Since there may be times of deployment for a military spouse, custody orders may need to be adapted to allow for times of deployment.