Military Property Division
California Equitable Distribution Laws
Just like any other family law matter, California has its own laws regarding the way in which marital property is divided in divorce. As a community property state, California stipulates that nearly everything that one or both spouses acquire while married is considered to be jointly-owned by both spouses. Community property and separate property are both explicitly defined in the California Family Code.
Marital and separate property must both be defined so that it can be properly distributed in the divorce process. California Family Code § 760 states that "all property, real or personal, wherever situation, acquired by a married person during the marriage while domiciled in this state is community property." Cal. Fam. Code § 770 defines separate property as "all property owned by the person before marriage; acquired by the person after marriage by gift, bequest, devise, or descent; and the rents, issues, and profits of the property described in this section."
Division of Marital Property in Military Divorce
The property division process for military divorce in California is no different than it is for civilian divorce, with rare exception. Some property may be exempt from division if it is considered to be property of the U.S. military, or if it was a gift. The one major difference in equitable distribution for military members is the division of military retirement benefits. Spouses are protected from loss in such situations under the Uniformed Services Former Spouse Protection Act (USFSPA). This act ensures that a nonmilitary spouse receives their fair share of the servicemember's pension in divorce.
For spouses who have been married less than 10 years, or in cases where the military member has served for less than 10 years, the nonmilitary spouse may not receive their portion of the pension directly from the pension itself. Instead, they might receive it out of other assets or property. In cases where the spouses have been married for at least 10 years and the military spouse has at least 10 years of qualifying military service, the nonmilitary spouse can receive their payment directly out of the pension. This is known as the "10/10 rule" under the USFSPA.
Hire a Military Family Lawyer in California
Do not hesitate to get the advice and representation that you need if you are facing a military divorce. Cutter & Lax, Attorneys at Law can ensure that your separate property is recognized as separate, and that your community property is fairly divided. We have 30 years of experience and are dedicated to the best interests of each of our clients. We also have firsthand insight into military law, since Attorney Nelson Cutter is a former JAG officer and retired reservist. Contact our firm right away for more information.
