1. California Family Law Overview
Sarah T. Schaffer
Mark Sullivan

2. Procedural Basics
Begin the action: File S&P, any forms required by local rule, and
File UCCJEA (if children of the relationship)
File RFO (If party desires temporary orders pending MSA or trial)
Once filed, properly serve all docs on Respondent
Respond to the action: File Response, any forms required by local rule, and UCCJEA and Responsive Declaration to RFO (if applicable) and serve the Petitioner.

3. Procedural Basics Prepare and serve PDD Discovery
Prepare and serve FDD
MSA or File “At-Issue Memorandum” requesting a trial date (if case is going to trial, FDD must be prepared and served at least 45 days before the FIRST assigned trial date)
Judgment
Post-Judgment Wrap-Up Issues

4. Issues to Consider Before Filing Petition in a Marital Action
ATROs
Binding on Petitioner once Petition is filed
Binding on Respondent once Petition is served
Estate Planning/Life Insurance
Health Insurance
Survivor Benefits/Derivative SS Benefits
20/20/20 Spouse
20/20/15 Spouse

5. Declarations of Disclosure: Requirements
FC§ requires that each party to a marital action serve on the other party a PDD (Preliminary Declaration of Disclosure) and an FDD (Final Declaration of Disclosure), unless service of the FDD is waived. Proof of service of each must be filed with the court
Continuing duty to update and augment the Disclosures to the extent that there have been any material changes.

6. Declarations of Disclosure: Requirements
Perjury on the Disclosure may be grounds for setting aside the Judgment (partially or completely). FC§
The PDD should be prepared at the beginning of the case, when preparing the Petition or Response.
Consists of Schedule of Assets and Debts and Income & Expense Declaration, plus the Disclosure face page.

7. Preliminary Declaration of Disclosure
Must be served on the other party “after or concurrently with” service of the Petition.
Must identify all assets in which the declarant has or may have an interest, and all liabilities for which the declarant is or may be liable, regardless of the characterization of the asset or liability as CP/QCP/ or SP.
Must be set forth with sufficient particularity that a person of reasonable & ordinary intelligence can ascertain the items. FC§2104(c)(1)

8. Post-Judgment Issues Modifications re Enforcement Actions
CC/CV/CS/SS
Enforcement Actions
CC/CV/CS/SS/Property Orders
Motions to Set Aside
Default Judgment improperly obtained
Fraud (often for failure to disclose asset/debt/and or value on disclosure docs)
Capacity/Undue Influence

9. HANDLING PROPERTY DIVISION & DIVISION OF MILITARY BENEFITS

10. HANDLING PROPERTY DIVISION & DIVISION OF MILITARY BENEFITS
Military Retirement Benefits
National Defense Authorization Act of 2017
Uniformed Services Former Spouses’ Protection Act
Obstacles to Division
Methods of Division
Survivor Benefit Plan
Enforcement of Awards
New Case Law – Howell v. Howell

11. HANDLING PROPERTY DIVISION & DIVISION OF MILITARY BENEFITS
MILITARY RETIREMENT BENEFITS
New Law
The National Defense Authorization Act (NDAA) of 2017, in Section 641, signed by President Obama on December 23, 2016, amended the definition of disposable pay in the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § In the case of a division of military retired pay as property (that becomes final prior to the date of a member’s retirement), the military member’s disposable income is limited to “the amount of basic pay payable to the member for the member’s pay grade and years of service at the time of the court order” and increased by the cost-of-living amounts granted to military retirees from the time of the (divorce) to the date the member retires.

12. New Division
In order to enable the designated agent (the Defense Finance and Accounting Service (DFAS), Garnishment Operations) to calculate the “new” disposable retired pay amount, a court order entered after December 23, 2016, (in a case where the order becomes final prior to the member’s retirement) that provides for a division of military retirement pay must provide the below listed three (3) variables.

13. If the member entered the service before September 8, 1980:
A fixed amount, a percentage, a formula, or a hypothetical that the former spouse is awarded;
The member’s pay grade at the time of divorce;
The member’s years of creditable service at the time of divorce; or in the case of a reservist, the member’s creditable reserve points at the time of divorce.

14. If the member entered military service on or after September 8, 1980:
 A fixed amount, a percentage, a formula or a hypothetical that the former spouse is awarded;
The member’s high-3 amount at the time of divorce (the actual dollar figure);
The member’s years of creditable service at the time of divorce; or in the case of reservist, the member’s creditable reserve points at the time of divorce.

15. DFAS
If the award language in the court order is missing any of the above listed variables, DFAS will not be able to approve the order and the court will have to clarify the award.  For additional information please see DFAS web page at

16. HANDLING PROPERTY DIVISION & DIVISION OF MILITARY BENEFITS
Frozen Benefit Division
Aka hypothetical clause
Locks in former spouse award and freezes benefit in place.
Post separation promotion accrues to member.

17. Proposed Language
The former spouse is awarded 28.7% (twenty eight point seven percent) of the member’s disposable retired pay [including any cost of living adjustments or post retirement increases]. At the date of this Order, the Member’s high-3 is $3, Member’s years of credible service during marriage was 11 years and 6 months and the member remains of active duty.

18. All States
All states will have to use new method for dividing a military pension.
Is Tucker moot?

19. HANDLING PROPERTY DIVISION & DIVISION OF MILITARY BENEFITS
MILITARY RETIREMENT BENEFITS
Obstacles Continued….
Uniform Former Spouses Protection Act (UFSPA) – and the “Ten Year Rule”
Direct Enforcement from DFAS (Defense Finance Accounting Service)

20. HANDLING PROPERTY DIVISION & DIVISION OF MILITARY BENEFITS
MILITARY RETIREMENT BENEFITS
“Secrets of the Inner Sanctum” Continued
Secrets of Gillmore
In re Marriage of Gillmore (1981) 29 Cal. 3rd 418
First Eligible to Retire – Non Employee Spouse
In re Marriage of Scott (1984) 156 Cal App. 3d 251
Extended Holding of Gillmore to Active Duty Servicemembers
CAVEAT: DFAS WILL NOT ENFORCE GILLMORE

21. HANDLING PROPERTY DIVISION & DIVISION OF MILITARY BENEFITS
THE SURVIVOR BENEFIT PLAN
State court may order the Servicemember to make an election to name his spouse a “former Spouse” beneficiary
If this happens, please make the designation a “deemed election”
Deemed Election Language
One-year rule
DD Form
Who pays the premium?
Ratio
Smith Analysis
Akin to a “property right?”

22. HOWELL V. HOWELL Summary and Impact of the SCOTUS Decision

23. Background Uniformed Services Former Spouses’ Protection Act
Definition of “Disposable retired pay:” 10 U.S.C. Section 1408(a)(4)
This is what is divisible in divorce by State Courts
Issue in Howell: VA Waiver by Servicemember (H)
10 U.S.C. Section 1408(a)(4)(A)(ii): Excludes from “disposable retired pay” amounts deducted “as a result of waiver…required by law to receive” disability payments such as Veterans Administration disability benefits (38 U.S.C. Section 5305)
This reduces “disposable retired pay”

24. Court’s Decision The Court’s decision in Howell:
State Courts do NOT have the authority to order a retired servicemember to indemnify former spouse for losses resulting from a VA waiver.
Rationale? Mansell v. Mansell 490 U.S.C (Federal law preempts State Courts from treating waived military retirement pay as community property)
Congress, in the UFSPA, specifically excluded the amounts of waiver from being included in the definition of “disposable retired pay.”
Timing of Husband’s election- did not matter

25. Effects of Decision
State courts can no longer order indemnification of former spouse by servicemember for reducing former spouse’s portion of their retirement
IRMO Krempin no longer good law?
Servicemember can unilaterally divest former spouse of his/her CP portion of military retired pay
Former spouse could lose it all-CRSC

26. What can be done? Spousal support:
From the opinion: “But we note that a family court, when it first determines the value of a family’s assets, remains free to take account of the contingency that some military retirement pay might be waived, or, as the petitioner himself recognizes, take account of reductions in value when it calculates or recalculates the need for spousal support. “
For Former spouses-
Refuse to waive S/S?
Consider potential reduction of retirement when determining S/S under FC 4320s?

27. What can be done?
If former spouse has a retirement, have Court reserve jurisdiction to amend servicemember’s portion if he/she elects a waiver?
Value the military retirement and offset it with another asset?
Use indemnity language, but ensure it is incorporated but not merged into the judgment?

28. QUESTIONS?
THE END!!