There are many active duty servicemembers and families living in the San Diego area, so it is no surprise that many divorces involve members of the armed forces. Military couples may find that securing a divorce in San Diego is more complicated for them than for other couples due to several factors:
1. Jurisdictional and residency issues. Military families move quite often and may not meet the residency requirements to secure a California divorce. Also, California divorce courts may not have jurisdiction over a spouse living in another state with limited or no recent contact with California.
2. Servicemembers’ Civil Relief Act (SCRA). One aspect of the SCRA is to restrict the service of divorce papers on deployed servicemembers. This was implemented so that servicemembers can “devote their entire energy to the defense needs of the Nation.” Servicemembers who have been served or requested to participate in a hearing may have rights under SCRA that they may exercise.
3. Military pension Tucker defense. Military pensions are subject to specific federal rules. A servicemember living in San Diego may be protected from the division of their military pension under the Tucker defense.
4. Brown Time Rule or Reserve Poppe Retirement Point Rule. The cases of Brown and Poppe may be used in helping courts decide how to divide military pensions.
5. VA Pension Disability Election. A servicemember who has been injured in the line of duty may have special exemptions for their disability pension that protects it from seizure during a divorce action.
6. The Gillmore Election. Gillmore elections are a way of dividing military pensions, much like a Qualified Domestic Relations Order (or QDRO) in civilian cases. An attorney can explain this election and help the veteran determine if it is the most cost-effective way to settle a divorce.
7. Survivor Benefit Plan (SBP). There are several plans that may pay survivor benefits to military families. The disposition of these assets must be considered as part of a divorce action.
8. Uniformed Services Former Spouses’ Protection Act (USFSPA). Federal law governs how military retirement benefits are handled in the event of a divorce. If the parties were married for at least ten years and the servicemember remains on active duty, a spouse may be entitled to payment of a portion of the servicemember’s military retirement.
9. Characterization of severance pay. Severance pay from the military may be substantial and may include a number of benefits. These benefits must also be considered as part of the assets that need to be protected in a divorce action.
10. Decrease in BAH with divorce. Basic allowance for housing may decrease or even be revoked with a divorce, so military personnel who are dependent on BAH for housing may need to reassess their living conditions.
11. Child custody and child support issues. Child custody and support issues can be very complicated and stressful for servicemembers. An attorney can help military personnel figure out the best way to handle child custody and support issues.
Active duty personnel deserve the very best support possible as they defend our country and our freedoms. Servicemembers need experienced and knowledgeable attorneys who understand the unique issues surrounding military divorces. Many of the attorneys, as well as staff, at the Men’s Legal Center have served in the military and understand the active duty personnel’s point of view.
Call today at (619) 234-3838 to set up an appointment with an experienced San Diego military divorce attorney!