Divorce and all its related issues—child and spousal support, child custody and visitation, division of assets and obligations, retirement—is complicated, especially when one or both parties are military servicemembers. Below is a guide to some frequently asked questions for military servicemembers as they navigate their divorce:
Court Proceedings and Child Custody
Q: If I am deployed outside of California, can my spouse or ex-spouse request the court modify our custody arrangement so that he/she gains more time with our child(ren)?
A: This by itself is not a good enough reason. Per Cal. Fam. Code § 3047(a): “A party’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 party’s activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state.”
Q: Will my Basic Allowance for Subsistence (BAS) or Basic Allowance for Housing (BAH) factor into what I pay or receive in child support?
A: Yes. BAH and BAS are considered and are included as income for purposes of calculating child support.
Q: What if I am living on base and not receiving my BAH directly? Will that amount still factor into what I pay or receive in child support? A: Yes. A court will count your BAH as income available for support whether you are receiving it or having it applied to your occupation in base quarters.
Q: What if I receive orders for a Permanent Change of Station? How does that factor into child support? A: the BAH you receive will vary depending on where you live. Thus, if you move to a state with a lower cost of living than California, your BAH will likely lower as well, in turn making less BAH income available for support purposes.
Q: What if I am receiving VA disability payments? Will this factor into what I pay or receive in child support? A: Yes. A court will consider VA disability payments income available for support when calculating child support. Your VA disability payments are not, however, subject to any sort of division when disposing of assets and debts.
Retirement & Pension
Q: What about my Thrift Savings Plan (TSP) that I started building before I even got married? Do I have to divide that equally with my spouse upon divorce? A: Yes and no. You must divide the community portion of your TSP equally with your spouse, referring only to whatever accrued during the marriage. Whatever portion of your TSP accrued before the marriage and after separation is not subject to division.
Q: What about my TSP accrual during the time between separation and the time my divorce is final? Is my spouse entitled to a portion of that? A: No. In this scenario, your spouse’s entitlement to a portion of your TSP ends at the date of separation, not the date your divorce judgment is entered. However, the community will share in any post-date of separation earnings or losses on the community portion of the funds.
Q: What about my military retired pay? Is my spouse entitled to any of my military retired pay if we were married less than 20 years? Less than 10 years? A: Yes. Military retired pay is devisable upon divorce, regardless of the length of your marriage. The court will apply a certain formula to determine the amount of pay the community has an interest in. The percentage will depend on factors such as the length of your marriage, the length of your service, and the number of years those two overlap. Issues such as date of retirement and survivor benefits should also be considered.
Military couples face unique challenges when going through a divorce. As the daughter of a Marine Corps Officer, Certified Family Law Specialist Shannon Miles has personal experience with the complexity of the issues that military families face. Ms. Miles serves as Court-appointed Minor’s Counsel and has served as appointed counsel for military service members under the Servicemembers’ Civil Relief Act.