California divorce with a twist: The military spouse

SAN Diego is “military town” and Navy and Marine Corps families abound, as well as retirees from different branches of our military.

The military life is a test of resilience and grit for many families, with divorce as almost an expectation rather than the exception.

The following seeks to address or clarify some common misconceptions about military divorce. We urge individuals considering divorce to seek a licensed, competent, and experienced attorney to help guide them through the maze.

“I found out my wife had an affair while on deployment. I want to file for Divorce but she does not want to. But it’s all her fault.”

California is a no-fault divorce state. A party filing for divorce does not need the consent of the other in order to file a Petition for Dissolution (Divorce) or, in some instances, to get a judgment of divorce.

Note that the Servicemembers Civil Relief Act (SCRA) gives military members a wide range of legal protections not available to the general public, such as postponing court proceedings. This includes divorce and child support. In general, the SCRA covers all active duty servicemembers, reservists and the members of the National Guard while on active duty.

“What? I have to share my retirement earnings? This is mine!!”

Generally, all of your assets prior to the marriage is just your own separate property. However, California is a community property state and so once you get married, all property acquired during marriage is community property. And if anything out of the community property is used towards separate property, the community might turn out to have a claim on part(s) of separate property. Separate property are “all property acquired before marriage; all gifts, bequests, devise, or descents. All property acquired or exchanged with traceable separate property; and all property acquired after separation.”

For military retirement purposes, the portion of retirement earned during marriage before separation is considered community property. A spouse is eligible to receive a portion of the military spouse’s retirement no matter how long they were married so long as the military spouse was earning retirement benefits while they were married. The Court may divide “disposable” retired pay, which is the “gross” monthly retired pay minus certain deductions.

“S/he is the one who left our family. I shouldn’t have to pay support.”

Issues of marital infidelity and family support can be handled directly within the military, with each military branch having their own guidelines. In California, however, since this is a no-fault divorce state there is no assignment of blame or fault; fault does not factor in the equation on the issue of support. Some of the factors that the Court will look at to determine whether there is basis for support, and if so, in what amount, are – length of marriage, age of parties, if there are minor children in the marriage, income of both parties.

“I’m smart enough to handle my own divorce. Why do I need an attorney?”

You don’t need an attorney. There is no requirement that you must have an attorney. However, in cases involving issues such as military divorce, domestic violence, custody disputes, child support, spousal support, and division of community property assets it would be wise to seek advice from a licensed and experienced attorney so as not to waste your time and money, not to mention the court’s time and resources, especially when you have to keep going back to court because of incomplete or missing documents that could have been addressed from the very beginning by a competent and knowledgeable attorney.

Not all divorce cases are the same. It is important to be properly informed about your rights and responsibilities under California law in divorce proceedings. The wrong advice or information can and will hurt you, and waste your time and money. Consult a licensed and experienced family law attorney to help you navigate through your divorce.

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Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 449-3923; [email protected];

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