Military Issues in Orange County Irvine Family Law Matters

OC Family Law DV Veterans Program

The Veterans Domestic Violance (DV) Program was created in 2010 to resolve domestic violence restraining order (DVRO) matters in Orange County family court involving veterans with no pre-deployment history of domestic violence. A finding of domestic violence could mean a loss of custody, visitation and employment opportunities for the restrained party. The program offers veterans in DVRO matters an opportunity to receive mental health services and avoid a finding of domestic violence, while providing the moving party with the protection of an ongoing temporary restraining order (TRO) until satisfactory completion of the program.

Step 1: Notification of Status

The responding party in a DV matter files Judicial Council form MIL-100 Notification of Military Status

Step 2: Initial Hearing

At the initial DVRO hearing, the court offers the parties the option of a TRO without a DV finding, but with the same protections for the moving party for a period of one (1) year. The veteran then agrees to allow a Veteran Liaison from the Orange County Health Care Agency to act as a case manager.

Step 3: Assessment & Treatment

The veteran is assessed for Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI) and substance abuse. If treatment is recommended, the veteran attends counseling, anger management or a parenting course. The Veteran Liaison assists the veteran to obtain services and benefits for which the veteran is eligible, including assisting with appointments and progress reports per court order.

Step 4: Review & Completion

The Court holds 90-day review hearings to monitor the Veterans’ progress, compliance with the TRO, to receive progress reports from the case manager and treatment providers, and to support family reintegration. If the moving party feels comfortable that there were no violations of the TRO, the case is dropped without prejudice. The Court can extend the TRO if one (1) year is insufficient.

Service Members Civil Relief Act (SCRA)

Pursuant to the SCRA, if the respondent in a family law case is in active military service, the court must stay the proceedings on its own motion or on the respondent’s counsel’s application to stay the proceedings for at least 90 days. The SCRA requires the member of the service to supply the court with a “letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear” and a “letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance ad that military leave is not authorized for the servicemember at the time of the letter.”

Custodial Rights of a Deployed Servicemember

Priority Setting for Military Families

Pursuant to Family Code §3047(h), family courts are statutorily required to prioritize and expedite child custody cases when a military parent is deployed or returns from deployment.

Modification of Existing Custody Order upon Deployment – Family Code §3047(b)

Modification of custody cannot be based solely on a party’s absence or relocation or failure to comply with custody and visitation orders due to military service activation and deployment out of state. When a party with custody or visitation rights receives temporary duty, deployment or mobilization orders from the military, requiring relocation to a location which is a substantial distance from his or her residence, any modification of the existing custody and visitation order shall be deemed a temporary order without prejudice and will be subject to review when the party returns from military deployment, mobilization or temporary duty. A presumption exists that custody reverts to the order that was in place before the temporary modification, unless the court determines that it is not in the child’s best interest.

Modification of Support upon Deployment

A party who suffers a change in income due to activation to U.S. military duty or National Guard service and deployment out of state may seek a support modification. The servicemember may request a support modification due to deployment by filing and serving Judicial Council form FL-398 Notice of Activation of Military Service and Deployment and Request to Modify a Support Order in lieu of a Request for Order.

The request asks the court to change the existing child, spousal or family support order to an amount based on the service member’s income while employed.

If possible, the court must schedule the hearing before the service member’s date of deployment.

Income Available for Support, Disability and Retirement

State courts are empowered by the Uniformed Services Former Spouses’ Protection Act to order property division and support payments out of military retirement pay benefits due to the obligor.

Subject to jurisdictional limits, a state court marital property division or support order may reach a military member’s disposable retired pay.

Wages of military personnel are subject to garnishment to enforce a money judgment.

Nontaxable Military Allowances Includible in Gross Income

The supporting spouse’s receipt of nontaxable military allowances for food and housing is includible in gross income for purposes of calculating spousal support. Allowances include, but are not limited to: Base Allowance for Housing (BAH) and Base Allowance for Subsistence (BAS).

Veterans Disability Benefits Includible in Gross Income

Veterans’ disability benefits payable to the disabled veteran may be reached by a state court order for child support.

State Court Jurisdiction Reaches Only 50% of Disposable Retired Pay

State court authority to treat military retirement pay as community property extends only to the military member’s disposable retired pay. Of the disposable retired pay, only a maximum of 50% can be ordered payable for support and property division.

Final Thoughts

Veterans appear in family court in connection with domestic violence matters, dissolution of marriage and child custody proceedings often as a result of untreated service-connected mental health issues. These proceedings offer opportunities to address and correct the underlying cause of a problem, avoid an outcome that may exacerbate that outcome and break the cycle.