Military Divorce

What is Military Divorce?

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 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 a variety of 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.

California grounds for a military divorce

The military divorce rules in California can be fairly complex and difficult to understand and interpret on your own; thus, it is strongly recommended that you consult a divorce attorney with experience handling military divorces.

No matter the status of either spouse, whether active duty, retired, in the guard or reserve, a military divorce can affect you. In addition, 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. Identifying irreconcilable differences implies that neither party was at fault and that there is no specific basis for the divorce.

Permanent incapacity of one partner. When one partner is determined to be clinically insane, you must give the court proof of a support order to file this.

Considerations Before Filing for a Military Divorce

Residency Requirements

Because active military personnel is 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 he or she resides. 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 reside 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. The state of California is a community property state, which means that all property and debt acquired during the marriage are considered community property and must be shared evenly. 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 cease.

Child Custody and Support

California courts do not discriminate against military parents who may be on 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 modify 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 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.

Allocation of Military Retirement Benefits

Special laws governs 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 or not a military spouse is involved in the divorce, 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 free medical treatment, access to military exchanges and commissaries, and eligibility for the survivor’s benefit plan (SBP).

After a military divorce in California, the military member’s spouse is entitled to a portion 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.

Military Members’ Filing Procedure

The following forms must be filled out for a military divorce:

• Gather and complete all the necessary paperwork for the divorce petition. It is suggested that an attorney review these documents to guarantee their accuracy before filing them.
• After completing the form and signing it, the required filing fee is paid at the local superior court.
• Copies of the divorce petition and dissolution of marriage summons should be delivered to your spouse. The papers must be delivered on your behalf by a friend, relative, sheriff, or process server.
• The documents should be signed by your spouse and returned within 30 days.
• It is best to discuss the best course of action with your divorce lawyer if a spouse objects to terms in the divorce agreements.

In A California Military Divorce, How To Determine Child Support

The amount of child support in a divorce is decided by state law in California. Service members’ dependent children are expected to receive adequate child support. Contact a reputable Laguna Hills military divorce lawyer for help with child support cases.

Families can better understand how a service member’s pay is calculated according to the Department of Defense’s Family and Military Affairs Service Administration. The amount of child support is normally determined by the state’s child support guidelines, but if you acquire an order that goes above those guidelines, DFAS may deduct money from your wages.

Call our Laguna Hills Military Divorce Attorneys Now!

Military divorce is different than any other kind of divorce, and we at Trevino Law, Inc. understand that. You have a lot on your mind, and you want an experienced attorney by your side who can guide you through the details of military divorce while also making sure that your rights are protected. We are here to help with all of this and more. 

We know how stressful it is to be in the midst of a divorce when you’re already dealing with so many other things. That’s why we are committed to providing you with the support you need. You don’t have to go through this alone—let us help. To set up an appointment, please call our Laguna Hills Military divorce attorneys today.