Suppose you are an active duty member of the U.S. military (or married to one) and have made the difficult decision to divorce. In that case, it is important to understand that your process will differ from a civilian divorce in many ways. They include:
- Where and when you may file for divorce
- How child and spousal support are calculated
- Rights covering pensions and other benefits
Military personnel have obligations and rights that do not always have a civilian counterpart in these and related areas. When they do, procedures and requirements may differ. This blog goes over these unique considerations for military divorces.
Serving Divorce Papers During Deployment
The Service Members Civil Relief Act protects military personnel from service of divorce petitions, child support papers, and other legal proceedings while they are deployed overseas and for 60 days after they return to the United States. They were implemented to ensure that service members did not come home to find themselves unexpectedly divorced and in support arrears.
Child and Spousal Support
When it comes to child and spousal support, military divorces are similar to civilian ones in that they generally use the support guidelines for whatever state is hearing the divorce action. If interim support is needed, each military branch has its own guidelines regarding amount and procedure, but they tend to be less than what the state would provide. The combination of child and spousal support may also not exceed 60% of a service member’s pay and allowances.
Calculating a Service Member’s Income
Military pay is different from most civilian forms of income. It consists of a base salary and includes a housing allowance calculated using the military member’s pay grade, family responsibilities, and location. Circumstances such as hazardous assignments can also create pay differentials, and it is not unusual to receive non-monetary compensation such as housing and board.
When calculating a service member’s income, it is better to use a Leave and Earnings Statement (LES) instead of a tax return, as some military income is tax-free. An LES will indicate the person’s base pay, allowances, housing, and how much leave they have accrued.
Filing State
While the law generally allows a divorce action to be initiated in the state where either spouse is legally domiciled, the federal Uniformed Services Former Spouses’ Protection Act indicates that the state where the service person resides is always the one with the authority to divide a military pension in a divorce. If a military spouse files in a different state, the court may not have the power to divide it unless the service member consents.
Some states have their own laws that affect how military pensions are treated. In California, military disposable retirement pay is treated as marital property. Because California is a community property state, it can be split equally if the non-military spouse is eligible to receive a share in their ex’s pension.
Division of Military Pension
Military pension division has specific challenges. The way the court addresses the division of a military pension depends on the state that the service member is a resident of or in some instances what their “home state of record” is. In California, many service members and spouses believe that they must be married for 10 years in order for the former spouse to be eligible to receive a portion of the military retirement. This is not the case as in California considers the retirement community property and can be divided in a judgment no matter how long the marriage overlaps with the military service.
Health Care Coverage
A non-military spouse has two potential options for health insurance after a divorce. Suppose the parties were married for at least 20 years during the military member’s active service. In that case, the civilian ex-spouse may receive no-cost TRICARE coverage unless they remarry before age 55.
The other option is conversion health coverage, also known as the Continued Health Care Benefit Program (CHCBP), which they may only receive if they are entitled to a share of their ex’s pension and do not remarry before age 55. Not all civilian coverage arrangements are time-bound or include a remarriage restriction: your military divorce lawyer can advise you on the best solution for your situation.
Speak to a California Military Divorce Lawyer
If you are a military member or military spouse seeking advice and representation for an upcoming divorce, contact the Grey Legal Group, APC today. We have years of experience helping service personnel work through their family law challenges and are ready and available to help you.
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