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Military Divorce

Understanding Military Divorce

By | Military Divorce

Understanding Military Divorce

Military divorce is usually considered to be significantly different from a non-military divorce. These differences generally make themselves known in the process of obtaining personal service, complying with rules and regulations set by the military, and dividing a military pension.  Military divorce has special procedures that need to be followed especially if the member is active duty.

In order for any court to assert its jurisdiction over a military divorce, the Petitioner will have to serve the active member with a petition for the dissolution, as well as a valid summons. Because of this, if the service member in question is currently deployed overseas, the process of completing a military divorce can be somewhat challenging.

The Military and Divorce

Divorce is not a simple process for anybody. Military divorce can be especially taxing within California because of the requirements the state imposes on service members that are deployed, living overseas or currently existing outside of the California jurisdiction.  Parties who are considering divorce with an active duty military member will often benefit from learning more about the path that is ahead of them before they start this trying process.

If you are the Petitioner in the case and your spouse is a service member who has been deployed overseas, completing service becomes extremely difficult.  The Servicemembers Civil Relief Act (SCRA) will be a factor in your case.  SCRA will postpone or suspend certain legal matters that are pending in court while the servicemember is located. The law states service members cannot be held responsible for not replying to a divorce petition when they are deployed, but it does not allow the military spouse to neglect the papers. If the service member fails to respond to the divorce, then the court may choose to appoint a reserve, civilian natural or active duty person as an officer of the court to serve the papers on their behalf.

The SCRA will appoint an attorney to located the military member and report to the court on his location and ability to participate in a divorce. During that time, there will be a stay in the case meaning the court cannot make any orders for support or division of assets.  If you are in need of support and your spouse is not paying, you should immediately contact their command to enforce military regulations for family support.  The court cannot make any orders while the stay is in place.

Federal Laws Regarding Military Divorce

Recently, federal laws and regulations have undergone some changes that should make personal service much simpler for military couples with children when the spouse is stationed overseas. Regardless of the location of the spouse in active duty, uniformed service members and federal agencies will be required to take on the responsibility of facilitating the legal process.

Military assets, including military pension of the service member, are valuable, and can be divided between spouses much like the standard assets within a regular divorce case. However, it is necessary for both spouses within a military divorce to understand how the court deals with dividing military pensions.  Not all servicemembers will be entitled to a pension, it does depend on the years of service.  If there is a pension, it will be divided by the time rule which looks at the length of service while married.  The portion that was acquired during marriage wil be split 50/50.

There other assets that are only issues in military divorce that need to be give special care. There is the Survivor Benefit Plan (SBP) election that needs to be discussed.  SBP needs to be ordered in order to be received and there are different levels of election, not all the elections will be covered by support payments.  There is also the Servicemembers Group Life Insurance (SGLI) that needs to be divide.

There are assets that need to be divided in military divorces that are not present in a non-military divorce.  It is important to understand what you are entitled to and what needs to be included in your divorce judgment.

Residency Requirements

In order for the court to have the ability to properly divide a military pension, the court must have the military spouse’s legal consent, or legal residence within a state. A spouse simply being stationed within a state for a temporary period of time does not constitute residency.  If the military member has maintained residency in a different state, California may not have jurisdiction to divide the military member’s pension.  Consent of the spouse does not have to be verbally expressed, as long as the court has proper jurisdiction it has the ability to divide military retirement, regardless of the overall length of the marriage.

Minella Law Group can Help!

As the article expresses, there are very specific rights involved in a military divorce.  An amicable military dissolution can be reached, but should be done with an experienced attorney who knows what to look for.

If you are facing a divorce and the United Stated Military is an employer, the qualified staff at Minella Law Group can assist you.  For more information or to schedule an appointment for a no cost consultation, click the button below, or call us at 619-289-7948. We look forward to meeting with you!

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Civilian vs Military Divorce

By | Military Divorce

Civilian vs Military Dissolution

Divorce can be a complicated, stressful, and confusing time for any couple. Gaining an understanding of how the process works can greatly reduce the expense, emotional strain, and time dissolution takes. If you or your partner is an active member of the United States Armed Services, chances are that you’ll be dealing with some divorce situations that don’t typically affect civilians. There are differences in civilian vs military divorce and it is important to know your rights.

Having a spouse within the military typically affects how support will be calculated, how pension rights and other benefits may be altered, and how custody and visitation rights are decided. From the very beginning, a military dissolution can provoke questions and issues that civilian couples are not usually exposed to. For example, some partners are confused about where they should file for a divorce, since the court must have jurisdiction over both partners. This means that you must file for a dissolution in a state where the military spouse resides, or in a state that both partners agree to. This is just one example of issues that you need to be aware of while going through in a civilian vs military divorce.

Support for Spouses and Children

Just like anyone else within California going through a divorce, members of the military are required by law to provide support to for their family. The department of defense requires all members of the service to comply with custody, support, and visitation orders as given by the court. The military will even go as far as to impose sanctions, including punishments as drastic as removal from the military service, if the individual in question neglects to pay that support.

The rates of spousal and child support are typically controlled by each individual state. But there are usually unique issues that arise when it comes to military spouses, including enforcing support orders after a service member has been deployed, calculating amounts and modifying agreements. Military law contradicts with civil law in that a military member is required to give a portion of their BAH which may be higher than what a court would order. However, until there is a court order stating different, the military member has to pay the rate stated by the military or risk being in defiance of military regulations.  It is important to have a request pending in court right away to avoid having to pay more than required.

When it comes to child visitation and custody, partners face an issue that is challenging no matter what the circumstances are. For military personnel, however, visitation and custody matters can be further complicated by uncertainty regarding future deployment and frequent movement. In California, courts want parents to share their children equally absent any compelling reason not to.  If a parent is on deployment or stationed overseas a custody plan will be created that will give them as much contact as is reasonable considering the circumstances including distance and age of the child.  Once the service member returns, their absence will not be used against them in a custody proceeding. There are very clear laws on this.

Benefits and Pension Rights

 Although the military operates under rules that are somewhat different to the private sector, it’s important to acknowledge that it is still, technically, an employer. The military provides various benefits, including a pension and medical support aspects such as life insurance and other opportunities for service members to take advantage of. All of these benefits can be subject to division in a military dissolution according to the law of the state in which the divorce is taking place.  As a military spouse, you are entitled to receive a portion of these benefits including a survivor benefit plan and perhaps lifetime medical coverage.

Minella Law Group can Help!

Unless the member of the military service within the partnership has only been part of the service for a short period of time, meaning that they have limited assets to deal with, it is important that partners do not attempt to negotiate a dissolution or settlement without an attorney. There are very specific rights that are involved and must be requested.  An amicable dissolution can be reached, but should be done with an experienced attorney who knows what to look for.

If you are facing a divorce and the United Stated Military is an employer, the qualified staff at Minella Law Group can assist you.  For more information or to schedule an appointment for a no cost consultation, click the button below, or call us at 619-289-7948. We look forward to meeting with you!

 

Fathers Visitation Rights in San Diego

By | Child Custody & Visitation, Family Law Blog, Military Divorce

Fathers Visitation Rights in San Diego

Maintaining fathers visitation rights after a particularly heated divorce or during a separation procedure can be complicated.  It really helps to understand what fathers visitation rights you have as a father under California state law. If you and your ex have recently filed for divorce, the chances are high that you are going to be going through an emotionally fragile situation.  It is very likely that making strategic and sensible decisions may be more difficult, having emotional support through this process is important.

Knowing what fathers visitation rights in San Diego are in comparison to other custody orders, may help to ensure that you are well informed.  This is important so you do not lose any of your entitlements as a Father that you so desperately need in order to be able to continue to provide the care and attention to your child.  It is important to understand fathers visitation rights in San Diego.

What’s the difference between Legal Custody and Physical Custody?

Physical custody refers to the place in which the child will live, whereas legal custody refers to the individual rights of the parent to make decisions in the best interest of the child. This may include a parent deciding which school the child will attend, or whether they will seek certain forms of medical attention. As a father, you have the right to make decisions about your child with the other parent jointly.  Fathers visitation rights includes having joint legal custody to be able to make decisions about your child with the other parent.

The Role of Mediation in Visitation and Custody

Most of the time, when a couple is going through a divorce, the judge in question may order them into mediation in an attempt to resolve the dispute with as little conflict as possible. The idea is that the parents, by working together with an objective individual, will have the best opportunity to create a plan that protects the child’s best interests, and gives them both the results they need. The only threat that a mediator can present to a divorce case takes place if the couple going through the divorce cannot come to a reasonable agreement during their mediation sessions. Fathers visitation rights are addressed in this process, in San Diego mediation is a mandatory part of a custody case.

If an agreement cannot be formed, then the mediator will construct his or her own recommendation for the best options in visitation schedules and custody options. Since mediation is mandatory in San Diego, most judges will automatically give the recommendations of a mediator automatic approval, however if you do not agree with the mediator’s suggestion, you do have the right to contest the decision at court with an evidentiary hearing.

The mediator will take into consideration who has been the primary caregiver, where the parties live, how often the parties work, and the desires of the child.  It is important to fathers visitation rights, that these factors be presented accurately as it can mean the difference between joint physical custody or seeing your child on alternate weekends.

Rights to React Against Slander and Insults

When in the process of a divorce, insults usually go back and forth between the former wife and husband when they are alone and out of earshot, turning the children involved into prisoners that are caught between two important people in their lives. The result of this could be that your ex-wife starts to bad-mouth you in front of your children, which can be highly upsetting for you.

As a father, you have the right to keep the other parent from alienating you from your children through insults, by requesting a hearing that allows you to seek sanctions against your ex-wife. The rights of father’s in custody and visitation cases are more expansive in certain states than others. In California, for example, this may not be case and this is why you need to have a hard working and committed attorney who is walking you through this process so you know what the law is and how this affects you. Every case has different orders, as part of your fathers visitation rights you can make sure the orders include restrictions on communications with any minor children.

Minella Law Group can Help!

The dedicated attorneys as Minella Law Group can help guide you through the difficult and emotional process of seeking custody orders as a father in San Diego.  Minella Law Group is experienced in child custody cases and can give you immediate hands on representation that you need.  For more information or to schedule a no cost consultation, click the button below or call us at (619) 289-2748.  We look forward to helping you!

Restraining Order in the Military

By | Domestic Violence Restraining Orders, Family Law Blog, Military Divorce, Military Divorce

Restraining Order in the Military

A common question I get from clients has to do with how to handle a restraining order in the military and how it affects an enlisted member of the military. First of all, it can affect your ability to get into the military as if you have a restraining order you cannot own or possess any firearms. Depending on your role, it may make you ineligible to enlist.

How Can it Affect Me?

If you are already in the military and you are a restrained party under a restraining order it is important that you seek counsel during your hearing. A CLETS restraining order against you comes with criminal and civil penalties.  CLETS stands for California Law Enforcement Telecommunications System.  The restraining order will get put into the system and when your name is run it will be listed that there is a restraining order against you. CLETS contains information about restraining orders as well as details about the names of the protected person and the restrained person.  They do this so police will be aware that there is already a domestic violence issue and they will know how to respond to a call.

Having a CLETS restraining order means that you cannot possess a weapon or firearm.  If part of your employment requires this, you have the potential to lose your job.  Additionally, a CLETS restraining order will show up on a background check which can ruin your chances of being allowed to enlist depending on the security clearance that you need to do your job.

What Can I Do?

If you are in the military and facing a Domestic Violence Restraining Order, you need to hire an attorney to assist you in your defense.  The attorney can talk to the protected party and make sure they understand the implications of a restraining order and that it can affect support.  Maybe an agreement can be reached outside of court.

If the protected party still wants a restraining order, you need to prepare an adequate defense as this is a very serious issue.  Losing at the hearing can have the potential for you to lose your position.

Minella Law Group Can Help!

If you are in the military and facing a Domestic Violence Restraining Order the qualified staff at Minella Law Group can assist you.  For more information or to schedule an appointment, click the button below, or call us at (619) 289-7948. We look forward to helping you.

 

Division of Military Benefits

By | Division of Marital Assets, Divorce, Military Divorce

Understanding the Division of Military Retirement in Divorce

 A military retirement fund, or pension, is a benefit that is provided to members of the military service once their duty has ended. Like other kinds of retirement pay, military retirement funds constitute a kind of deferred compensation, an arrangement wherein a portion of an employee’s income is paid out on a date after that income was actually earned.

However, unlike other pensions that may allow members to borrow portions of their payment or receive cash sums early, military retirement funds are inflexible. Once an individual within the military service has completed twenty years of military action, they will be entitled to receive their full pension.

 Entitlement of a Former Spouse to a Military Spouse’s Pension

The USFSPA or Uniformed Services Former Spouse Protection Act does not automatically award the spouse of the military member with any of that service member’s retired pay. Instead, the law permits the state to treat the issue of military disposable retired pay as another form of property within marital law, allowing it to be divided during the divorce proceedings like other marital assets.

USFSPA permits the local court to treat the retired pay of a service member as they would any other civilian pension plan, and under the USFSPA, a court may decide to divide the pension between the two spouses at a particular ratio, or they may award it fully to the service member. In the event that the fund is awarded fully to a service member, the courts may decide to otherwise compensate the spouse for his or her share of the pension using other marital assets.

Survivor Plan Beneficiary

Under the consideration of the USFSPA, just like a current spouse, a former spouse may be designated as the Survivor Benefit Plan beneficiary of their military partner. SBP is a particular annuity that can allow for retired service members to continue providing some form of income to a particular designated individual in the event of the service member’s death.

Typically, unless a retiring service member specifically requests to be removed from participation or declines involvement, they will be automatically enrolled into the Survivor Benefit Plan. Usually, if a divorce procedure takes place after the service member has retired, then the court will terminate the beneficiary designation that had originally been in place in favor of the spouse, although coverage can be directed towards the former spouse either by voluntary payments or to comply with a court order.

How to Request a Share of the Military Pension

If you are considering a divorce procedure as the spouse of a service member then it is important for you to focus upon addressing the pension during the proceedings, even if you feel as though retirement appears to be a particularly distant prospect. If your aim is to receive some of your ex-partner’s retired pay, then you will need to obtain a court order dictating the division of his or her military pension.

There are two ways of arranging a court order dictating the division of retirement funds. First, you and your spouse could request to enter into a written agreement between the two of you which dictates how the pension will be divided. If you and your spouse cannot agree, then you will need to go to trial and allow the court to decide the division for you.

Minella Law Group Can Help!

If you need help with your military divorce Minella Law Group can help ease the burden and guide you through the process.  For more information or to schedule an appointment, click the button below, or call us at (619) 289-7948. We look forward to helping you.

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