Commencing the Proceeding for Dissolution
Summary Dissolution:
If you have been married for less than five years, have no children,real estate, assets and minimal debts and each party will waive the right to receive spousal support then you may qualify for a summary dissolution.
Both parties must sign the Joint Petition and complete the required disclosures and execute a Settlement Agreement. The six-month waiting period commences at the filing of the Joint Petition. There is one filing fee required. Either party may revoke the Petition during the six month waiting period. If this occurs you will need to commence a regular proceeding for Dissolution of Marriage.
Regular Dissolution:
A proceeding for dissolution of marriage is commenced by the filing of the petition accompanied by the payment of the initial filing fee. The six-month waiting period (required by the state of California for all dissolution cases) commences with this service of the filed documents.
You can commence the proceedings while you're deployed. An attorney can prepare the initial filing paperwork for your review and email it to you for your approval and signature, then file and have the documents served on your spouse. Thereafter your attorney can then keep you apprised of the status of the proceeding. If you and your spouse are willing to execute a Marital Settlement Agreement resolving all issues, a judgment package can be prepared and submitted for processing. The proceeding can be concluded without the necessity of a court hearing.
Child Custody and Visitation:
In order to obtain non-emergency custody and visitation orders you must file in the state where the child/children has been residing for six months preceding the filing. If there is a true emergency which requires custody/visitation orders to protect a child, any state can make temporary orders if the child at issue is in that state when the emergency arises.
While deployed it is imperative you maintain a presence in your children's lives. This can be done by FaceTime, Skype, phone calls, emails and letters while you are deployed. The court can issue orders for virtual visitation setting specific times for FaceTime, Skype or telephone.
While you are stationed in the states you need to obtain a schedule for you to spend time with the children in person. This can be achieved by agreement of the parties or order of the court.
Child Support/Spousal Support:
California support orders are more complex than the military standards. The calculation requires inclusion of your income, allowances, time you spend with your child/children "timeshare" and your spouse's income. If you are in a tax-free zone the income is entered in the formula as non-taxable income. This coupled with a zero timeshare often results in an extremely high order for support. If you're deployed, the timeshare is often entered at zero for the period of deployment.
To meet the requirements of the federal standard of support you are often given credit for the bills you're paying such as automobile payment, cell phone bills, automobile insurance, etc. California does not give you credit for these payments against support in the absence of a stipulated agreement (written and ordered by the court) or court order. This is a consideration if you are choosing between the payments you are currently making and obtaining a Guideline Child Support Order.
Debts and Obligations:
At the time the court initially enters orders for child and spousal support the court normally does not order payment of debts and obligations. The court gives priority to the support obligations.
To maintain your good standing with the military and your creditors these debts need to be paid. If you're able to convince your spouse to pay some of the debts out of the support money received, this needs to be written up in the form of a stipulated order and filed in the proceeding.
At the settlement of the property or trial, the parties should divide the debts or the court should issue orders concerning the debts. In the event the other party fails to pay the debts assumed or ordered and the indebtedness is in your name, you remain liable to the creditor. The court is unable to alter the contract you entered into with the creditor when the creditor extended credit or issued a card which was utilized by you or your spouse. You may have to pay the debts and go after your spouse for repayment in order to maintain your credit standing.
Military Retired Pay:
Even if you have not been married to your spouse for 10 years (date of marriage through date of judgment of dissolution) while on active duty, your spouse still has an interest in your military retired pay. The 10 year rule applies to your spouse having the right to direct enforcement. What this means is upon the member's retirement, the non-member can request his/her portion to be paid directly to the non-member by DFAS. In marriages of less than 10 years the non-member can only collect their portion from the military member.
The community acquires an interest in the retirement pay commencing on the date of marriage and terminating on the date of separation. Your spouse is entitled to one-half of community interest in the military retired pay. The military member receives the remainder of the military retirement pay which gives the member the other one-half of the community interest plus the members separate property interest. The separate property interest is the military retired pay attributable to the member's service prior to the date of marriage and after the date of separation. The military member should not agree to give the non-member one half of the members military retired pay if the member has a separate property interest in the retired pay. The non-member is only entitled to one half of the community interest in the military retired pay.
