FAMILY LAW ARTICLES
I have, over the years, represented many, many military servicemen and women. Because service members tend to relocate frequently, issues of jurisdiction over the military member often arise.
Or at least the issue should arise. And that’s why I am writing this blog.
I have often been hired to come into a case after an out-of-state service member has already submitted to California’s jurisdiction, when – if it had been properly raised as an issue early in the case – the service member would have been able to entirely avoid California’s support and property distribution laws. I have often been in court listening as another attorney, representing the service member, happily submits to California’s jurisdiction over the service member, who was only here as an enlisted person pursuant to military orders. That is not sufficient to convey jurisdiction…but if you or your attorney consent to jurisdiction here, by – for instance – appearing in the case personally or by filing a document in the case, then California has you, and you will receive property and support orders under California Law.
Why would you want to avoid that, you ask?
Let’s start with support. In California, our Courts are required to consider the service member’s non-taxable BAH/BAS as income available for support, in addition to the service member’s regular salary. That is not the case in many other states. This results in orders from California courts for child and spousal support being more than double the support orders a court from, say, Texas or Virginia would have ordered. In a California case, this can result in support orders so steep they exceed half the service member’s wages. The monetary investment a service member can make in a good attorney, just to keep him/her out of a California support order, is always well spent… and, in fact, pays for itself many times over. The difference is very often more than a thousand dollars a month.
Now let’s talk about property rights – and I’m going to focus on the service member’s pension in particular. California is a “community property” state, meaning the service member’s dependent spouse would be entitled to half of the service member’s pension accumulated during marriage. Other states have significantly different viewpoints. Florida, for example, is an “equitable distribution” state, which means the judge gets to do what seems fair with regard to pensions. Significant case law in Florida supports the ruling that a dependent spouse, who is not at risk of life and limb during the service member’s period of active duty, should not receive half of the pension accumulated during marriage. I know of one case in which the court only granted 25% of the marital pension credits to the dependent spouse. Over a period of 35 years (retirement at age 40, say, to age 75) the benefit to the service member for keeping his pension rights out of California’s courts can amount to hundreds of thousands of dollars.
Naturally, dependent spouses tend to be aware of the significant monetary benefits they will receive by litigating their family law cases in California. I had one case where the dependent spouse returned to California, filed for legal separation a week later, and served the service member in a state on the East Coast as he was preparing to deploy overseas the following day.
She knew what she was doing; but so did we. We did the right thing and stomped on the California action, hard, using technology to coordinate our action with our deployed client. The divorce action here was dismissed, and the case is proceeding in our client’s current state of residence… His support order is less than half of what would have been ordered by a California court, and I’m waiting to see what happens with his pension, and the house. That particular state regards property as belonging to the spouse who earned it with his/her labor… and that state has very military-friendly statutes.
The take-away from this little blog post? If you get served with family law paperwork for a California court, and you are not a resident of this state – or in this state solely pursuant to military orders – call an attorney who can have an intelligent discussion with you about jurisdiction to see if you might be able to keep your support and property rights out of California courts.