John Griffith discusses special issues to consider when going through a military divorce.
Website: www.griffithfamilylaw.com
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Hi my name's John Griffith. I'm a divorce and family law attorney here in San Diego, California. This is one of several videos aimed at addressing common issues that come up in California divorce and family law cases. I should note that what I say shouldn't be construed as legal advice. Every family law case is different with its own set of unique facts and circumstances. If you'd like legal advice you should contact a family law attorney. My office offers free consultations; if you'd like to discuss your case, give me a call, and we can talk about your family law case individually. Today I'll be talking about military divorce and certain issues that you should consider especially as either a member of the military, a service member, or the spouse of a service member. There are certain issues that are different than civilian divorces. While military divorces are handled in civilian court there are certain issues that people going through a military divorce have to deal with that civilians do not. One of those issues is military retirement. And whether you're the petitioner or the respondent to a petition for divorce, there's a certain way that you need to handle the division of the military retirement. Now if you're a California resident, you've been a California resident, and your home of record for the purposes of the military is California, then your military retirement will be divided according to California law. But it's very important whether you file the petition or you're responding to the petition, and your home of record is in a state other than California, that you include on your petition or your response an assertion of what are called your Tucker rights. And Tucker rights come from a case called "Marriage of Tucker" a few years back that addressed the issue of military retirement for service members getting divorced in California but have a home of record outside of California. What that case says it is that you can let the California court know that your home of record is in another state, and you have a right by law to have your military retirement divided according to the law of your state. So if you're from a state like Florida, and Florida doesn't have the same laws that California does with respect to the division of community property and specifically retirement benefits, then you'd want to assert your Tucker right and have your military retirement divided in Florida. Now I'm not saying that Florida has different laws, I'm just giving that as an example. You'll have to talk to an attorney in the state where your home of record is to figure out what they say about the division of military retirement. In the state of California if you waive that Tucker right then and it's not listed in the petition or response, your military retirement will be divided according to California law. What California law says is that if you in fact retired from the military after twenty years then your spouse or your ex-spouse will be entitled to what's called a pro rata interest in your military retirement. What the court's going to do is going to take the number of years overlap between your marriage and your service and figure out what the community property percentage in that retirement is, and your spouse is going to be entitled to one half of that. So for example if you're married for ten years and you spend twenty years in the military and you're in the military for the entire ten years, then the community would be entitled to fifty percent of your retirement at which point your ex-spouse would be entitled to twenty five percent of the military retirement check. So that's something that you definitely want to consider when you're either filing a petition or responding. The other big issue is the way that you get paid. If you're a service member or your spouse is a service member the way that he or she gets paid is a little bit different than civilians are paid. You have your base pay and you also have your allowances. The most common allowances are basic allowance for housing and then the BAS, and both of those are as you know non-taxable income. So the court's going to look at those as non-taxable income when deciding on making orders for both spousal support and child support.
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Divorce: Prenups- Prenuptial and Premarital Agreements- Griffith Lawby GriffithFamilyLaw197 views
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