Protect Your Rights in a California Military Divorce
Going through a divorce is never easy, and it can be even more complicated if you or your spouse is in the military. When a military marriage ends, several issues must be addressed before you can move forward as a single parent or with another significant other. If you are facing this situation, our Laguna Hills California military divorce attorney can help you understand the specific rules and laws that apply.
Military divorces have unique aspects, like dividing military pensions and handling child custody when one parent is deployed. Knowing these differences can make the process smoother and ensure a fair outcome.
Quick Summary:
- Military divorces are more complex than regular divorces due to unique rules and laws specific to military families. Both state and federal laws play a role in military divorces, affecting everything from court jurisdiction to the division of military benefits. The place of legal residency often determines jurisdiction for military personnel, even if they are deployed elsewhere.
- Military divorces in California require a six-month waiting period before filing, even if deployed outside the state. These divorces involve unique factors such as military spousal support, child custody and visitation, child support, and the division of military pensions and benefits. Property division in military divorces also has specific considerations.
- The grounds for military divorces in California are irreconcilable differences and permanent incapacity of one partner. Irreconcilable differences show that the marriage cannot be saved, and no specific wrongdoing needs to be proven. Permanent incapacity involves a spouse having a severe, long-lasting mental or physical condition that affects their normal functioning. Proof of the incapacity must be provided to the court to use this ground for divorce.
- Filing for a military divorce involves special considerations such as residency requirements, deployment complications, and the Servicemembers Civil Relief Act (SCRA). Military divorces must navigate unique rules for property separation, spousal support, and child custody. California’s community property laws need equal sharing of property acquired during the marriage. Military-specific rules govern the division of military retirement benefits, with the Uniformed Services Former Spouses’ Protection Act (USFSPA) providing certain entitlements to ex-spouses.
What is Military Divorce?
A military divorce is when one or both people in a marriage are members of the military and decide to get divorced. This type of divorce differs from a regular divorce because it involves special rules and laws that apply to military families.
Both state and federal laws govern military divorce. For example, federal rules may govern where divorcing spouses end up in court or how military pensions are shared. In contrast, state laws may govern the issuance of alimony and spousal support. The specific state rules that govern a divorce differ depending on the state where the divorce is filed.
Jurisdiction
Before a court may award military members or their wives a divorce, it must have “jurisdiction” or the authority to hear the case. Generally, a person’s place of residence determines the court’s jurisdiction over them. However, for military personnel, the place of legal residency may serve as the court of jurisdiction, even if the service member is deployed elsewhere.
Why is a Military Divorce Different?
California mandates a six-month waiting time before you may file for a military divorce. We could start this process if you were deployed outside of the state. Military divorce involves various factors, including:
- Military spousal support
- Military child custody & visitation
- Military child support
- Division of military pensions & benefits
- Property division in military divorce
You must know your rights and understand how to defend yourself and your future. Get in touch with us to learn more about how our California military divorce lawyers can assist.
What are the Grounds for a Military Divorce in California?
No matter the status of either spouse, whether active duty, retired, in the guard, or reserve, a military divorce can affect you. Also, California is a no-fault state, which means adultery and desertion cannot be used as grounds for divorce. However, they can be considered during child custody hearings and the division of assets and property. Whether you are filing for a military or civilian divorce in California, the grounds for divorce are the same. These grounds consist of:
Irreconcilable Differences
The most common ground for divorce in California is irreconcilable differences. Identifying irreconcilable differences implies that neither party was at fault and that there is no specific basis for the divorce.
That means you and your spouse have problems that cannot be fixed, and you no longer want to be married. You do not have to prove that anyone did something wrong. You must prove the marriage cannot be saved.
Permanent Incapacity of One Partner
Permanent incapacity means that one spouse has a severe and long-lasting mental illness or physical condition. This condition must be so severe that it affects their ability to function normally. The incapacity must be permanent, meaning it is not expected to get better over time. When one partner is determined to be clinically insane, you must give the court proof of a support order to file this.
What are the Considerations Before Filing for a Military Divorce?
Filing for a military divorce involves special considerations you must be aware of. Before you file for divorce, being prepared for the specific legal issues involved is crucial. Here are some factors to consider:
Residency Requirements
Because active military personnel are stationed around the United States and the world, you may encounter complications when deciding where to submit your divorce petition. Typically, a spouse will petition for divorce in the county where they live. A military spouse must file the paperwork in the state where the service member is based or in their home state.
To file for divorce in California, one of you must live or have a place of business in the state. For your application to be considered, you must have lived in California for a minimum of six months and in the filing county for a minimum of three months. If neither of you fits the residence requirements, you must either wait to submit your lawsuit or file in the state in which one of you resides.
Deployment of a Military Spouse
The rules differ if you file for divorce while your husband is deployed or on extended active duty. As in a civil divorce, you must serve your spouse with the divorce petition and summons, but deployment can complicate the procedure.
The Servicemembers Civil Relief Act (SCRA) safeguards active-duty military personnel from civil judicial processes, such as divorce summonses. In a civil divorce, a spouse who disregards the summons has no say in property division or child custody issues. Due to the SCRA, active-duty military personnel cannot react; hence the default procedure does not apply. Active-duty service members cannot be subjected to default judgments; federal law takes precedence. Therefore, if a non-military spouse files for divorce, there will be no court hearings until the conclusion of the partner’s active duty.
Additionally, the SCRA delays divorce proceedings for 90 days after the military spouse’s duty has ended.
Property Separation
The same property-sharing rules apply to military and civilian divorces. California is a community property state, meaning all property and debt acquired during the marriage are considered community property and must be shared evenly. Community property accounts for almost all the property that was acquired throughout the marriage, such as:
- Homes
- Cars
- Furniture
- Rental property
- Assets
The assets obtained before the marriage and those inherited or bestowed after the marriage are regarded as “separate property” and may be retained by the respective spouse. Divorcing partners can share the possessions of their own will. If they cannot agree, the court will decide who receives what. This procedure may result in delays.
Spousal Support
A military spouse who earns more than their partner can be forced to pay spousal support during the divorce proceedings, just as in civilian divorces. A judge determines the amount based on considerations such as:
- The length of the marriage
- Financial needs and responsibilities of both partners
- Education level and employability skills of the dependent spouse
- Age and health of every partner
Spousal support cannot exceed sixty percent of the military spouse’s income. If a couple has been married for fewer than ten years, they are only required to pay alimony for half the period of their marriage. When the dependent spouse remarries or dies, alimony payments stop.
Child Custody
California courts do not discriminate against military parents who may be in active service when determining child custody. The fact that a military parent may be deployed out-of-state or abroad at any time is insufficient to change a custody order or visitation schedule.
It is often advisable for military families with small children to have an uncontested divorce if they agree on all conditions, including child custody, of their divorce. That way, the parents can decide custody and visitation matters independently, without the court intervening.
Child Support
Child support payments are determined based on state-mandated guidelines. The court considers household income, the number of children, and the time the children spend with each parent. Like alimony, child support payments cannot exceed sixty percent of a service member’s wages.
The state law in California decides the amount of child support in a divorce. Service members’ dependent children are expected to receive adequate child support. Families can better understand how a service member’s pay is calculated according to the Department of Defense’s Family and Military Affairs Service (DFAS) Administration. The amount of child support is normally determined by the state’s child support guidelines, but DFAS may deduct money from your wages if you get an order that goes above those guidelines.
Allocation of Military Retirement Benefits
Special laws govern the division of military retirement benefits in military divorces. Members of the U.S. Armed Forces get retirement benefits that make up most of a family’s assets.
Whether a military spouse is involved in the divorce or not, benefits earned during the marriage are often considered part of the assets to be divided. The Uniformed Services Former Spouses’ Protection Act (USFSPA) provides various benefits to former military spouses after a divorce, such as:
- Allowing ex-spouses to receive health care at military facilities
- Allowing for the division of retirement pay between service members and ex-spouses
- Allowing ex-spouses to shop at military exchanges and commissaries
- Allowing ex-spouses to receive direct payment of military pay from the government
- Allowing victims of spousal or child abuse access to military benefits
The law, however, does not do the following:
- It does not include a formula for dividing payment.
- It does not compel courts to divide military retirement benefits.
- It does not grant a preset share of military retirement pay.
- It does require an overlap of military service and marriage to divide retirement pay.
- It does not limit the percentage of disposable pay available to ex-spouses.
After a military divorce in California, the military member’s spouse is entitled to a part of the retirement income if the marriage lasted at least ten years and overlapped with active duty for ten years. The USFSPA regulates the calculation and distribution of military retirement benefits. Contact a VA regional office in your area for more details on military benefits and rights for divorced military spouses.
Why Do I Need a Military Divorce Attorney in California?
When military couples are considering divorce, the split can be complicated. Since the service member’s income is a prime source of household income, the prospect of a long-term separation can get very scary.
In this situation, our Laguna Hills California military divorce attorney can help minimize the stress of a military divorce. At Trevino Law, Inc., we are dedicated to:
- Providing a strong and knowledgeable defense in your case: We understand the unique complexities and challenges of military divorces, so we’ve made it our mission to provide you with a strong and knowledgeable defense. Our goal is to help you achieve an amicable divorce while achieving the best possible results under the circumstances. We are trained in California family law and the laws that affect our service members and their families.
- Assisting you with any issues on the division of military benefits: We are ready to assist you with any issues on the division of military benefits, including a part of retired pay and medical benefits. We take on cases involving California’s community property laws that many people are unfamiliar with about military retirement pay. The state has specific laws dividing the assets differently than federal laws do. Our team is prepared to navigate this complicated process for your benefit.
- Providing legal representation about your child’s custody and support: We’re proud to offer our clients a broad range of services. We have experience with divorce and family, domestic violence, and estate planning matters.
Our family law firm is here to help you protect what matters most. We understand the unique challenges of this type of separation. We offer insight into property division, access to and custody of children, benefits available to military members and veterans, taxation, and asset protection.
Call our Laguna Hills CA Military Divorce Attorneys Now!
Military divorce is different from any other kind of divorce. The military divorce rules in California can be complex and challenging to understand and interpret on your own. Our Laguna Hills California military divorce attorney at Trevino Law can guide you through the details of military divorce while ensuring your rights are protected.
We can walk you through the process and address the specific issues that may arise. You can navigate your military divorce more smoothly with the proper legal guidance.
We know how stressful it is to be in the middle of a divorce when you’re already dealing with so many other things. That’s why our family law firm is committed to providing you with the support you need. You don’t have to go through this alone—let us help. Contact us today to schedule a free consultation, and let us help you handle your military divorce with confidence and peace of mind.