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Posted on November 11, 2016 in Military Divorce

military divorce

161104-N-BL637-129 PACIFIC OCEAN (Nov. 11, 2016) Sailors assigned to USS Carl Vinson (CVN 70) conduct flight operations during a simulated strait transit. Carl Vinson is currently underway conducting Composite Training Unit Exercise (COMPTUEX) in preperation for an upcoming deployment. (U.S. Navy Photo by Petty Officer 3rd Class Sean M. Castellano/Released)

Military divorce cases often include complicated issues. That’s why it’s important to hire an attorney familiar with military divorce cases and the issues presented by these cases. Certified Family Law Specialists have extra training and experience that is very valuable for military families. Certified Family Law Specialists must pass a second bar exam and have substantial working family law experience.

For example, in a military divorce case there are almost always pension benefits to analyze and divide. The community interest in a military retirement pension is generally divided equally according to the Brown time rule. Additionally, servicemembers may be eligible for military disability benefits. A recent California appellate court opinion highlights the complexity involved in dealing with issues concerning military disability benefits when those disability benefits replace retirement pension benefits.

In Cassinelli v. Cassinelli, the parties divorced in 1986. As part of the divorce judgment, Wife Janice Cassinelli received a portion of Husband Robert Cassinelli’s military retirement pension payments. Janice received monthly payments for many years directly from the Defense Finance Accounting Service (DFAS), as she and Robert were married for more than ten years while he was in military service. Janice expected to receive these monthly payments for the rest of her life.

However, Twenty-six (26) years after their divorce, Robert applied to receive veteran’s disability benefits and combat-related special compensation (CRSC). Robert had to waive his retired pay (the pension payments he and Janice were receiving) in order to receive the new disability benefits. As a result of Robert’s waiver of the retired pay, DFAS stopped sending monthly retirement pension payments to Janice.

Janice took Robert back to family court where the judge ordered Robert to pay Janice an equal amount of spousal support (dollar-for-dollar) to the amount of military retired pay she lost after Robert applied for disability pay and waived his retired pay. Robert appealed the trial court’s order.

The Fourth District Court of Appeal held that it was not appropriate for the trial court to order spousal support in this case to replace the military retired pay. The appellate court said that the trial court can and should award civil damages payable by Robert to Janice to replace the waived retired pay. The court explained that Janice’s interest in a portion of Robert’s retirement pay is a property right. Robert’s action in waiving the retired pay to get disability pay impacted Janice’s property right. Therefore, Janice is entitled to an award of civil damages from Robert.

The Appellate Court opinion has an impressive amount of background and detail explaining the complexity of military retirement pension and disability issues. There are other complicated issues related to military pension benefits, such as jurisdictional concerns. All of these military divorce issues are unique to every case. They are important subjects to discuss with an experienced and skilled attorney.

Attorney Scott Family Law, CFLS, is a Certified Family Law Specialist with more than 35 years of litigation experience. Throughout his career, Mr. Scott has represented countless San Diego military family members. Mr. Scott has also provided divorce mediation services for military families. Please contact Mr. Scott today at 858-974-4900 to schedule a consultation appointment.