Military Divorce Attorneys in Long Beach, CA

Long Beach, CA military divorces have different rules for residency requirements and service of process upon an active-duty spouse. Military divorces must comply with military rules and regulations, follow certain procedures for the division of military pensions. Military spouses are often separated by deployment, which results in different parenting priorities and often leads to different goals in property division in Long Beach, CA.

WHERE TO FILE FOR DIVORCE IN LONG BEACH, CA?

In a civilian divorce, the filing usually occurs in the county where one of the spouses has resided prior to the filing of the petition. In a military divorce, active military members live in places (domestic and foreign) where they are stationed and be legal residents of another state. A military spouse must file for divorce where the service member is stationed, or in the state where he or she is a resident (State of Legal Residency or SLR). SLR of the military member spouse is the state of entry into the service or the state where the member has been stationed for an extended time if the member changed the domicile to that state. SLR and stationed state are often different. One of the spouses must reside or be stationed in California to file here.

HOW TO SERVE YOUR SPOUSE IF S/HE IS DEPLOYED AT THE TIME OF FILING?

If you file for divorce while your spouse is deployed or on active duty for an extended time, the Service members Civil Relief Act (SCRA) is a federal law that protects the active-duty military members against civil court proceedings among many other protections. A divorce summons and petition is the commencement of a civil court proceeding against an active duty military member and as such protects the active-duty military spouse against default.

The SCRA permits the court to delay divorce proceedings for the duration of the military member’s active duty. If the deployed spouse chooses to waive the divorce process postponement. However, in this case, the active-duty member should hire an attorney to protect his or her rights during the divorce.

HOW IS SUPPORT CALCULATED IN LONG BEACH, CA?

The military requires spousal and child support to begin on the date of separation, but California law determines the maximum amounts a service person will pay. The Uniformed Service’s Former Spouse Protection Act controls the calculation and division of military benefits. Service member’s basic allowances must be included in the support calculation, as well as, property division.

HOW IS RETIREMENT DIVIDED IN LONG BEACH, CA?

Military service members with at least 20 years of active-duty service receive a lifetime retirement pension. Under the Uniformed Services, Former Spouses Protection Act (USFSPA) military pensions can be divided in divorce just like any other asset. Under the USFSPA, state courts were granted the right to choose how or whether to divide military retirement in a divorce, legal separation, or annulment. State courts may grant up to half of a service member’s retirement pension as part of a divorce.

A military pension is a government-funded defined benefit plan with member contributions done through service in lieu of cash contributions. Upon retirement, the member receives monthly compensation, becomes eligible for disability benefits and for participation in a survivor annuity program. Additional benefits include ongoing exchange and commissary privileges, as well as medical care. The amount of benefit depends on the total time served, basic pay at retirement, and an annual cost of living adjustment (COLA).

If California has jurisdiction over the military member, it may divide the retirement pension. If the military member objects to jurisdiction on the basis of improper domicile, s/he should do so as soon as possible (if s/he waived postponement) and stay consistent throughout the action.

HOW WAS THE LAW CHANGED AS TO DIVISION OF RETIREMENT PENSION IN LONG BEACH, CA?

On December 23, 2016, the then President signed the National Defense Authorization Act for Fiscal Year 2017, which contained a little-known provision that applied to the division of military retired pay. Congress rewrote the Uniformed Services Former Spouses’ Protection Act (10 U.S.C. § 1408) to require that the pension of a member not yet retired on the date of the divorce to be divided as though the member was retired on that date. n other words, the pension is to be now divided using the rank and years of service at the date of such division. DFAS has now interpreted the date of division as the date of divorce.

The new act is in direct conflict with IRMO Lehman (1998) 18 Cal.4th 169. Prior to the Act, the majority of states divide all pensions – military, state, federal and civilian –using the “Time Rule,” which means that the community property interest in retirement benefits is determined by a fraction whose numerator is the employee’s length of service from the date of marriage through the date of separation, and whose denominator is the employee’s total length of service at retirement. For military retirement benefits division, martial asset equaled disposable retired pay multiplied by marital duty time divided by total duty time. About half of states (prior to the Act) used a “snapshot” approach to dividing retirement benefits treating the member spouse as already retired on the date of the division. The federal government just made that minority rule to be implemented in all the states.

The new military division order must include the following information:

1) If the member entered the service before September 8, 1980:

A fixed amount, a percentage, a formula, or Time Rule formula that the former spouse is awarded;
The member’s pay grade at the time of divorce;
The member’s years of creditable service at the time of divorce; or in the case of a reservist, the member’s creditable reserve points at the time of divorce.

2) If the member entered military service on or after September 8, 1980:

A fixed amount, a percentage, a Time Rule formula that the former spouse is awarded;
The member’s highest amount at the time of divorce (the actual dollar figure);
The member’s years of creditable service at the time of divorce; or in the case of reservist, the member’s creditable reserve points at the time of divorce.

DFAS is less than cooperative in providing this information in order to prepare the division orders.

To give you an example of how this law changes pension division, here is an example:

John Doe just retired as a sergeant major (E-9) in the Army with 30 years of service. He was divorced from Jane Doe ten years prior to retirement when he first enlisted in the Army. The pension division order was entered on the date of divorce, when he was a sergeant first class (E-7) with 20 years of creditable service. So, under the old rule, John would be given the benefit of the last ten years of service after the divorce (the majority of states.) In about six states, Jane would receive half of 20/30 of John’s actual retired pay.

Under the new rule, the court would require to order for Jane 50% of the retired pay of sergeant first class with 20 years of service (as if he retired on the date of the divorce). Her share is frozen in time (date of pension division order or date of divorce for DFAS).

The new law is silent as to COLAs (Cost of Living Adjustment) for the non-military spouse. There is also no language on whether other division methods are allowed if the military spouse agreed to a different division. California and other western states already allow immediate payments but now presumably since the pension is frozen at the time of divorce, non-military spouses may demand immediate payments. An unhappy spouse may also remove the case to federal court.

WHAT TO DO IF YOUR SPOUSE IS A MILITARY MEMBER IN LONG BEACH, CA?

The change in the law is inapplicable to an award of the Survivor Benefit Plan (“SPB”), where strict deadlines must be met before retirement. The changes also have no impact on determining “entitlement benefits” for the Former Spouse, such as 20/20/20 Determinations for Base Access and TRICARE.

Consult with a military divorce attorney to ensure proper support calculation, as well as, division of assets and parenting plans.

Zwierzchowski & Nguyen