How Are Benefits Divided for Divorcing Service Members? 

Divorce is never easy. The process is even more complicated when a spouse is an active military member. As a military couple, your life begins changing when you decide to separate. Active duty assignments often dictate your housing, your children’s schools, childcare resources, and many other personal and family circumstances. As with every military-connected concern, very specific guidelines affect your benefits and entitlements, and your divorce process.

At The Law Offices of Steven M. Bishop, we recognize the complexities of navigating a legal system governed by both military and state statutes. We understand that the procedures for dividing military benefits are often complex. As a Certified Specialist in Family Law, Attorney Bishop works to protect your legal and financial rights, and he helps you meet each challenge.

Who Has Jurisdiction Over Your Divorce?

Several federal statutes affect whether a California court has jurisdiction over your divorce and related matters.

Filing Your Divorce Petition

As long as your military spouse doesn’t object, you have several filing options. You may file a divorce petition in your state of legal residence, your spouse’s state of legal residence, or the state where your spouse is on active duty.

Responding to Your Divorce Petition

A spouse may file a divorce petition against an active military spouse, but the Service Members Civil Relief Act, 50 USC §§ 3901-4043, sometimes prevents the court from taking further action. If a spouse files a divorce petition and the respondent’s military duty prevents active participation, the respondent doesn’t have to meet the court’s timetable. The court also has no right to issue a default judgment. Once a divorce is final, the military will comply with judgments based on a final decree.

Benefits Entitlement

Child Support and Spousal Support

The Defense Finance and Accounting Office will process child support and spousal support payments in compliance with a final divorce decree. The Consumer Credit Protection Act, 15 USC § 1673, limits the amount the DFAO can deduct from an active military member’s pay. They will deduct 50 to 65% of a military member’s disposable income. The maximum contribution percentage depends on the member’s contributions to all dependents, their percentage of a child’s overall support, and other factors.

Military Retired Pay Benefit

The Uniformed Services Former Spouses’ Protection Act, 10 U.SC., §1408, grants state courts the authority to issue a judgment based on a former spouse’s military retired pay. The award must be part of a property settlement and must be included in a final decree. The USFSPA also grants the Department of Justice the means to enforce a state order.

The 10/10 Rule

A divorced spouse may receive a portion of the spouse’s military retired pay only if they were married for at least 10 years during a period where the spouse had at least 10 years of military service.

The 20/20/20 Rule

An ex-military spouse is entitled to receive medical benefits and commissary and exchange privileges for life or until he/she remarries. This applies only if the marriage lasted 20 years or more, the spouse has 20+ years of military service, and the couple was married for at least 20-years during which the spouse was active in the military.

Military Service Often Contributes to Marital Discord

Members of the military are our heroes, but their marriages often suffer due to active duty separations and deployment in conflict zones. The Department of Defense examines the most common issues through their “Active Duty Spouses Well Being” surveys. The 2017 results show that 20% of military spouses encountered marital issues with 23% experiencing difficulty after the spouse returned from deployment. Of the spouses interviewed, 51% felt a “high level” of stress and 24% reported unemployment as an issue.

Military spouses also reported loneliness, difficulty handling family issues alone, personal and technical problems with spousal communication, childcare complications, and other issues. Sixty percent of responding spouses reported overall satisfaction with military healthcare, income, housing, grocery prices, and community support. Unfortunately, a divorce eliminates or restricts access to these benefits.

Post Traumatic Stress Syndrome causes marital problems as well. The Veterans Administration National Center for PTSD cites PTSD as having “…pervasive negative effects on marital adjustment…” Rates for the disorder vary depending on the military mission. Of those involved in recent engagements, the VA estimates that 11 to 20% suffer from PTSD.

Contact The Law Offices of Steven M. Bishop

Military divorces are often complicated because they are governed by multiple state and federal guidelines. As a Certified Specialist in Family Law, Attorney Bishop provides compassionate service and helps military spouses work through this complicated process. Reach out to us at (619) 299-9780  or complete our Contact Form to arrange a consultation.

Is My Spouse Entitled to Half of My San Diego Business?

California has a divorce rate of 6.7 percent according to U.S. News. While California may not fall into the top tier of divorce rates, everyone understands divorce is not easy and there are always disagreements. One of the primary things spouses typically face challenges with is division of property. Since California is a community property state, making property division even more complicated, you should consult with a family law attorney immediately to ensure what steps you need to preserve your assets.

Understanding Community Property as it Pertains to Divorce

Community property is defined as “joint ownership of all property acquired during a marriage except property acquired by gift or will“. This rule also applies to debt incurred by spouses during marriage. The court  deems any property accumulated during the marriage as community property since the spouses equally shared in the acquisition of the property. This means in general, property and debt are generally divided equally between spouses at the time of their divorce.

Businesses Structured as Partnerships or With Multiple Owners

When a business is formed during a marriage in California in general it is considered community property. Should you form a business as a sole proprietorship, the decision by the court is easy: Your spouse would likely be entitled to half the business. There are other complex issues to deal with however including how the business is structured.

Clearly if your spouse is a partner, they are entitled to their portion of the business. However, there may be other partners in the business and there may be specific wording in the corporate documents which indicate each parties rights should they retire, divorce, or die while the business is still operational. In these cases, the family court would likely review the documents in making a determination about the disposition of the business, or the assets of the business.

Spouse Role in a Business May Impact Division

Another consideration which must be part of the discussion about your San Diego business when dealing with a divorce is the role your spouse may have played in the business. However, if your spouse had a part in the day-to-day operations of the business, there is a chance the judge hearing your divorce case may feel they are entitled to a portion of the business. The more involved the spouse, the more likely this is to occur, particularly if you and your spouse cannot agree between yourselves, or if you have an agreement which seems to treat your spouse unfairly.  These are issues you should discuss with your family law attorney when you are talking to them about your divorce and your business.

Exceptions to Community Property Rules

In addition to property which one spouse may inherit or have gifted to them, post and prenuptial agreements have an impact on property division. In the event an agreement specifies the business is considered individual property, then your spouse would not be entitled to half. The other case where property may be considered sole property is assets which were owned prior to the marriage. Keep in mind, if a business owner is divorcing and the business was started prior to the marriage the court may deem the business separate property.

When it comes to a business, there may be other complicating factors. For example, if a spouse starts a business using  funds which were bequeathed to them in a will, given as a gift, or which they had prior to the marriage, the rights of the spouse may come down to a determination by the courts. In some cases, the court may determine the business is entirely separate property, and in other cases, they may use other, more complicated calculations.

California Courts and Business Ownership

Family courts in California have specific ways to determine what portion of a business is considered community property. The first method is known as the Pereira method and the other is known as the Van Camp method. Here’s how they work:

  • Pereira Method – this calculation involves knowing the value of the business at the time of the marriage and the date of separation. Assuming the growth of the business is due to efforts during the time of the marriage, the increase in value is considered community property.  If one assumes at the time of divorce the business is worth $500,000 and was worth $100,000 at the time of the marriage, the $400,000 would be considered community property subject to equal division.
  • Van Camp Method – this method is used in circumstances where the court cannot determine that you had a substantial role in the businesses’ growth. This method is often used in cases of limited partnerships. In general, a spouse would be entitled to half the “usual” salary earned as a limited partner, and not the value of the business. The reasoning behind this is only that amount of money is considered community property.

Divorces are always complicated, and they become more complex when there are business interests at stake. When there is a combination of community property and separate property, division of assets is challenging. You need to work with an attorney who has experience dealing with complex divorce matters to represent you fairly, and to serve as your advocate. In some instances, we may be able to help you preserve more of your business than you might be able to preserve on your own.

Because community property laws can be confusing when it comes to a business, you need to discuss these issues with your divorce attorney as quickly as possible. We have also assisted those who fear their spouses may be using their business in an attempt to shield assets from divorce proceedings.

We know you have worked hard to grow your business and losing half of your business in a divorce could put your future financial security at risk. When you are concerned about the future of your business because you are going through a divorce contact The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation at 619-299-9780. We represent people throughout San Diego County in a host of different family law matters.

Can I Relocate My Kids Out of State During Divorce Proceedings in California?

One of the most difficult hurdles during a divorce proceeding every parent will have to deal with is the one pertaining to their children. Unfortunately, while both parents usually agree the well-being and safety is of utmost importance, oftentimes, they disagree on what is required to keep their children safe.

In some cases, one parent may be faced with the decision to relocate, often out of state, for job needs, to be closer to immediate family, or for other reasons. However, before you make that decision on your own, it is important to understand your rights, as well as your obligations under California’s laws.

Relocating a Child During Divorce Proceedings

If you have been awarded sole legal custody during a divorce proceeding, you can move with your child to any location deemed safe for the child. However, keeping in mind that the other parent may opt to request the court to intervene, particularly if the custody order under which you have custody is a temporary one.

In this case, you should seek guidance from a qualified family lawyer who can help you determine whether your order is temporary or permanent. This could save you legal problems because while you have the right to move out of state, the other parent could dispute that right.

Divorce Petitions and Relocation of Children

Some parents want to move out of state immediately after being served a divorce petition. This is a bad idea – Chances are, your petition also included a restraining order. These orders are called “automatic temporary restraining orders” and they are in immediate effect and prohibit the removal of a child from the state without written consent from the other parent.

If you have physical custody of your child, and the child’s other parent has visitation rights and you have a concern they may consider moving the child to another state, you should speak with your attorney immediately.

Understanding Divorce and Custody in California

The first thing you should do is make sure you have an attorney who understands family law. This is important because you want someone who is going to serve as an advocate for you, and for your children.

Child custody in California can be complicated, and orders awarding custody are subject to modification. However, the basics of custody are:

  • Physical custody – this means the child is assigned to live with one parent full time while the other parent typically has visitation rights. Depending on various factors, visitation may be supervised or unsupervised.
  • Sole legal custody – this means one parent makes important decisions for the child. This includes where the child will attend school, makes decisions about religious upbringing and other decisions in the best interest of the child.
  • Joint legal custody – this form of custody allows both parents to have an equal say in important decisions pertaining to the child’s upbringing.
  • Joint physical custody – this can be more complicated than it sounds. Joint custody in effect means the child splits their time between both parents. There are some who believe this form of custody has a detrimental effect on the child, but nonetheless, this is often an agreement reached between parents or assigned by a court.

The Court and Relocation Considerations

In general, a parent who has sole legal custody of a child has the right to move that child to any location they prefer without consulting with the court or the other parent. However, this does not stop the other parent from requesting a relocation hearing because they do not feel the relocation is in the child’s best interest. Some issues the court will take into consideration during these types of hearings include:

  • How far away you intend to move with the child
  • Whether there is potential harm for the child if you were to move
  • What the relationship is between the child and each parent
  • What the child’s specific needs are including educational and emotional needs
  • The ability to maintain family relationships after relocation
  • Why the parent is opting for the move (personal relationship, job opportunity, family)
  • The child’s overall safety and stability after the move

Understanding Custody Agreements

Parents who are considering relocation must have a firm understanding of final custody agreements before making such a move. Even where a parent has sole custody, and therefore the legal right to relocate the child, the court may ask the reasons for the relocation. In some cases, if the court feels the relocation is not in the best interest of the child, they may prevent such a relocation from occurring.

Custody, Visitation and Traveling Out of State

Parents who share custody, or have visitation agreements also need to understand that either parent who has physical custody of a child at any time is free to cross state lines with the child and go anywhere they choose. The only limitations to this is if a parent has expressed concern about the safety of their child and the court deems that out of state travel would be detrimental to the child. If you believe your child could potentially be in danger traveling out of state, you may be able to seek a modification of your existing agreements pertaining to visitations. Seek guidance from your attorney regarding this issue as soon as you believe it may be a problem.

Contact A Certified Specialist in Family Law

Family law is a very specific type of legal practice and it is important for you to work with someone who has experience when it comes to issues that pertain to your children, their safety, and their well-being. At the Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation you will find a certified specialist in family law who has experience handling numerous cases pertaining to child custody issues. We understand your concerns and are familiar with California custody laws and can help you understand your legal rights and help you fight to keep your child in the state if you are concerned their other parent is going to move them impacting your relationship with your child. Contact us today at 619-299-9780 and schedule a free consultation and let us help you with your relocation issues and concerns.

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Discuss Your Case With An Experienced Family Law Specialist

To talk to our lawyer about your family law issue in a free telephone consultation, please call our office at 619-299-9780. You may also send us an email. We represent people throughout San Diego County in a host of different family law matters.

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The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation

591 Camino De La Reina, Suite 700

San Diego, CA 92108

Phone: 619-299-9780

Fax: 619-299-0316

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