Things about Family Court in California that Military Members or Veterans should know.
- The monies you receive for housing and food allowance or disability, though non-taxable, is still considered as income for child support (and spousal support) purposes.
California uses a statewide guideline calculation that considers the income of both parties along with the amount of time each parent spends with their child(ren).
Pursuant to California Family Code section 4058:
“(a) The annual gross income of each parent means income from whatever source derived, except as specified in subdivision (c) and includes, but is not limited to, the following:
- Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article.”
This means that all income whether it is taxable income or not is used to calculate income available for support.
- The state you claim as your residence for tax purposes for your pay is not always what the court relies on for personal and subject matter jurisdiction.
California will have jurisdiction (the power to hear and make decisions on your legal matter) if 1) you are personally served with a Summon or Petition, 2) you are found to have meaningful and purposeful contacts with the State, and 3) based on the amount of time and nature of contacts you or your child(ren) have had with California such that it can render orders for a dissolution of judgment and/or child custody.
A person can file for Legal Separation in the county in California for which they have lived no less than 1 month. A person can file for divorce in California if they have been a resident of the County in which the matter is filed for no less than 3 months before the matter is filed. If the same individual has children, then the court will not have jurisdiction to make custody orders unless the children have been residents of the County in which the matter was filed for 6 months before filing. Without getting into the issues that can arise with active military members who have lived in this State for 3 months but less than 6 months, the point is that one of the only times the State in which you claim for tax purposes is relevant is in determining your income available for support, whether you will be filing a separate action in that state to solely determine retirement benefit rights, and the tax deductions that will come out of your pay at retirement for the purpose of division.
Keep in mind that California is a community property state. So, if you are personally served, and the court finds that it has jurisdiction over the matter, while I have had cases in which parties wanted to litigate the division of a military retirement in their home state for military income tax purposes, unless you are a person who wants to have lawsuits in 2 states and can afford such type of litigation, the California Family Courts will order that the community share of your assets and debts will be divided equally between the parties.
- The court doesn’t divide everything you own in half. It divides the community share of assets and debts in half.
As stated above, California is a community property state. Only the property and debts acquired during marriage will be the subject of the court’s orders for division and such division will be in equal parts. So, if a person has military retirement benefits that accrued before marriage, those are the separate property of the military member. Any retirement benefits that a person acquires after the date of separation are the separate property of the military member. The court will order the preparation of a Qualified Domestic Relations Order (QDRO) to divide the marital interest in a pension. Once completed, usually by an Actuary or lawyer who specializes in these types of orders, the order is served on DFAS. DFAS will then carry out the order sometime after that and issue payment automatically to the non-military member spouse, upon retirement.
If you have not yet retired and have a TSP, once it is know what the community share is of this account, the court will order a division. However, the military member does not simply cash out the non-military member spouse’s share and pay it to them. If a person did that, the military member or veteran would be taxed on that withdrawal. The non-military spouse will need to create their own IRA for a rollover. If the non-military member already has one, then the rollover can also be done. I would stress that neither party transfers assets between themselves without a written and signed agreement, preferably filed with the court.
- Property (real and personal) acquired outside of California (anywhere in the world) can be subject to a order for division by a California Family Court.
Again, once the court has determined it has jurisdiction to make orders in your divorce matter, it doesn’t matter where property is located, if it was acquired during marriage, the court will make orders regarding assignment of the property to one party or the other, or it can and will most likely order its sale.
- Active-duty members who are deployed or in active combat may ask for a stay.
The Servicemember Civil Relief Act sets out certain benefits that deployed or in active combat may be able to find some volunteer legal assistance through their local County Bar Association. If you need a stay while on deployment, contact the local County Bar Association in your area to see if they can be of assistance.