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Military Members Involved in Divorce, Custody or Support Proceedings Happ Law Group P.C.’s Divorce and Child Custody Lawyer is a Certified Family Law Specialist Experienced in All Aspects Of Divorce and Child Custody Cases Involving Officers and Enlistees of the United States Armed Forces
Whether you are an officer, enlistee or spouse of a U.S. Military member, aspects of your divorce, child custody or child support proceeding will be unique to that of a similar proceeding involving civilians. At Happ Law Group P.C., we have the expertise and experience necessary to ensure that your rights as a military member or military spouse are protected.
For more information on family law issues unique to military personnel and their families, please click on the links below:
- Stay of Proceedings for Active Duty Military Members
Pursuant to the Servicemembers’ Civil Relief Act (SCRA), if a military member is on active duty and has not made an appearance (i.e. filed a responsive pleading or appeared in Court), the court may stay the proceedings for at least 90 days on application of counsel or the court’s own motion, if the court determines that there might be a defense that cannot be presented in the absence of the member, or if the member has not been contacted and it cannot be determined whether a meritorious defense exists.
When the military member does have notice, the court may grant the stay anyway if the member requests it. The minimum 90-day stay becomes mandatory if the request includes:
- A statement that says how the member’s military duties materially affect his or her ability to appear;
- A statement of when the member will be available;
- A statement from the member’s commanding officer, stating that the member’s military duties prevent his appearance; and
- A statement from the commanding officer that military leave cannot be granted at that time.
If a default judgment is entered against a person while he or she was in military service or within 60 days of the termination of that service, the court must reopen or set aside the default judgment upon timely application by the military member. The motion to set aside must be filed within 90 days of the termination of the military member’s military service, and must demonstrate to the court that the military service “materially affected” the military member‘s ability to defend the action and that the military member has a “meritorious or legal defense” to the action or to some part of it.
- Child Custody and Visitation
A military member’s duties can often interrupt that member’s court ordered parenting plan. Certain protections are afforded to military members to ensure that their service to the Country does not negatively impact their rights as a parent:
- A parent’s absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the parent’s activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state.
- If a parent with sole or joint physical custody or visitation receives temporary duty, deployment, or mobilization orders from the military that require the parent to move a substantial distance from his or her residence or otherwise has a material effect on the ability of the party to exercise custody or visitation rights, a modification of the existing custody order shall be deemed a temporary custody order, which shall be subject to review and reconsideration upon the return of the parent from military deployment, mobilization, or temporary duty. If the temporary order is reviewed upon return of the parent from military deployment, mobilization, or temporary duty, there shall be a presumption that the custody order shall revert to the order that was in place before the modification, unless the court determines that it is not in the best interest of the child.
- If the court makes a temporary custody order, it shall consider any appropriate orders to ensure that the relocating parent can maintain frequent and continuing contact with the
child by means that are reasonably available. Upon a motion by the relocating parent, the court may grant reasonable visitation rights to a stepparent, grandparent, or other family member if the court does all of the following:
- Finds that there is a preexisting relationship between the family member and the child that has engendered a bond such that visitation is in the best interest of the child.
- Finds that the visitation will facilitate the child’s contact with the relocating parent.
- Balances the interest of the child in having visitation with the family member against the right of the parents to exercise parental authority.
- If a parent’s deployment, mobilization, or temporary duty will have a material effect on his or her ability, or anticipated ability, to appear in person at a regularly scheduled hearing, the court shall do either of the following:
- Upon motion of the parent, hold an expedited hearing to determine custody and visitation issues prior to the departure of the parent.
- Upon motion of the parent, allow the parent to present testimony and evidence and participate in court-ordered child custody mediation by electronic means, including, but not limited to, telephone, video teleconferencing, or the Internet, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.
- Child or Spousal Support
A California court must have personal jurisdiction over a party to impose an order to pay support. If a party is a military member, at least one of the following three specific requirements of the Uniformed Services Former Spouses’ Protection Act (USFSPA) must be met if the State of California is to have jurisdiction over the military member for support purposes: consent, residency (other than because of military assignment), or domicile.
Modification Due to Deployment
There is a special method to modify a child support order for a person deployed to active military service that departs from standard modification procedure. If a party is activated to military duty service and deployed out of state, he or she may file and serve a Notice of Activation of Military Service and Deployment and Request to Modify a Support Order (Judicial Council Form FL-398), in lieu of a formal modification motion.
If an order modifying or terminating a support order is entered due to a change in income resulting from the activation to United States military service and deployment out of state for either the support obligor or the support obligee, the order shall be made retroactive to the later of the date of the service on the opposing party of the notice of activation or request for order to modify or terminate, or the date of activation, unless the court finds good cause not to make the order retroactive and states its reasons on the record. Good cause shall include, but not be limited to, a finding by the court that the delay in seeking the modification was not reasonable under the circumstances faced by the service member.
- Property Division
Military Retired Pay
Military retired pay is a defined benefit retirement plan. The characterization of defined benefit retirement plans are determined using the “time rule.” Per the time rule, any military retired pay accrued during the marriage is characterized as community property and divisible 50/50. Military retired pay accrued prior the marriage, or after the date of separation, is the military member’s separate property and awarded 100% to the military member.
Thrift Savings Plan (TSP)
A Thrift Savings Plan (TSP) is different from that of military retired pay. Generally speaking, the characterization of TSP deposits, like any other defined contribution retirement vehicle (e.g. 401K) is based upon when the deposit was made. If a TSP deposit was made during the marriage (i.e. after the date of marriage and before the date of separation), then the deposit will be characterized as community property. If a TSP deposit was made before the date of marriage or after the date of separation, then the deposit will be the military member’s separate property.
Military Disability Payments
Military disability payments received after the date of separation are generally the separate property of the disabled military member. Military members have the option of electing disability payments in lieu of military retired pay. Said election cannot be utilized to diminish the non-military member’s community interest in the military member’s military retired pay. Therefore, to the extent that the payments received by the military member are earned by virtue of employment during marriage and before separation, the payments are community property.
Military Life Insurance Policies
Federal law precludes treatment of military insurance policies or their proceeds as community property.