Military marriages have significant differences compared to civilian marriages; the spouses spend months or even years apart. As such, military divorces present a set of special challenges, and the spouses involved in a divorce case may face obstacles that civilians may not face. The cases can be more complex because they deal with both Federal and California law. If you’re part of a military couple contemplating divorce in California, there are many issues that you must beware of in order to proceed with the case. The case can become even more challenging if the spouse is away on active duty when the divorce is filed. A skilled divorce attorney can help you tackle the exclusive procedural rules that govern military divorce, and matters of child custody and division of military retirement benefits.
At San Diego Family Law Attorney, we understand that a career in the military and the pressures associated with wartime can create marital problems, which can lead to divorce. Contact us today at 619-610-7425 for a free consultation on this overwhelming situation.
Similarities of Military Divorce and Civilian Divorce
While a military divorce is certainly surrounded by unique circumstances, whether one or both spouses are members of the military, let’s first look at the similarities between the two. Both military divorces and civilian divorces will end a marriage. This, therefore, implies that both parties will be single and free to remarry following the dissolution of marriage. The divorce procedure is more or less the same as one party will file the papers and the other will be required to respond. Also, the two parties are required to come up with a child custody and visitation agreement, divide their debts and property, and agree on spousal support. Members of the military are also required to discuss the issue of child support as they are still financially responsible for their children.
Issues That Create a Difference
Before filing a divorce where you or your spouse is military personnel, you need to ensure that the court has authority over your marriage. There are residency requirements that must be fulfilled for you to be eligible for divorce in California if your spouse is currently in a foreign country but will return to California. However, the issues involving how you create a divorce agreement, a child custody agreement, and how long it will take before the divorce is finalized will depend on several factors including the location of your spouse, whether or not you can be able to communicate, and whether or not he or she plans to move back to California. Active members of the military have certain unique rights that are not available to civilians.
Grounds for Military Divorce
California is a no-fault state and this means that either party is not required to prove the particular reason why they want to be divorced. In this case, there are two grounds for divorce: incurable insanity and irreconcilable differences. Incurable insanity requires the filing spouse to provide evidence of medical reports or psychiatric testimony showing that the other spouse is incompetent and was in that state at the time the petition was filed. Irreconcilable differences imply that there are substantial reasons for not continuing the marriage and it should, therefore, be dissolved. If one spouse declares that he or she no longer wishes to be married, then they have the right to file for a divorce.
Jurisdiction, in divorces, is normally where the couple lives. For there to be jurisdiction in a military divorce, one spouse must have lived in California for at least the past 6 months, and 3 months in the county where the divorce will be filed. There’s no requirement for the spouse who is a member of the military to be in the state at the time the divorce petition filed. However, he or she must be made aware of the petition no matter where he or she may be stationed.
Procedural Issues in Military Divorce
When at least one party is an active duty member of the military, there are key procedural issues that need to be addressed. In all divorces, one spouse files the petition and the other receives summons and copies of the divorce papers. This may not be as easy in a military divorce. The federal government passed the Servicemembers Civil Relief Act (SCRA) in order to protect military members from civil actions when they enter active duty. The aim of the SCRA is to ensure that service members can focus on their military tasks at hand without being distracted by legal issues at home. The act protects members from issues arising from things such as evictions, security deposits, insurance payments, income tax payments, vehicle leases, mortgage interest rates or foreclosure, and credit card interest rates.
As it applies in military divorce cases, the Act provides protection to active duty service members in the following ways:
- A default judgment can be set aside if you’re an active duty military or if the judgment was entered within thirty days after leaving the service;
- If you’re served with a summons while on active duty, you have the right to postpone the proceedings for a reasonable period of time to allow to more fully participate in the process.
If you’re a civilian married to an active member of the military and you need to make sure that the proceedings are moving forward as efficiently as possible, you may have to go through a very complex process. In this case, you will need the help of an experienced California military divorce attorney who can ensure that your divorce case is handled in an appropriate manner from the beginning.
Deployment and Child Custody in Military Divorce Cases
In determining who gets custody of the children, the family law courts will make an order that is in the best interest of your child. The court will also make temporary and permanent orders using this standard. Child custody issues are one of the most complex issues in a military divorce as they differ in the way that the court evaluates modifications of the orders. If you’re activated to military duty and the court grants you physical custody of your child, your rights will be protected and you will not be deprived of custody for being engaged in military service.
According to California Family Code 3047, a parent’s relocation, absence, or failure to act in accordance with the orders because he or she is on active duty, shall not, by itself, be enough to validate a modification of the child custody and visitation orders. This, therefore, implies that if the child custody and visitation orders and you’re activated to military service or temporary service, your spouse has no right to file a permanent modification to the orders while you’re away. Temporary custody and visitation orders will be implemented by the court and will be in effect until you’re no longer active status. The orders will, however, be returned to the way they were before your deployment. The circumstances are considered to have changed just because you’re activated to military service. If you’re a military spouse or an active service member, you should not try to work on any child custody issues without the help of a knowledgeable and experienced child custody attorney. The attorneys at San Diego Family Law Attorney will help you fight to obtain the best possible outcome.
Division of Military Retirement and Pension Benefits- USFSPA
Divorce agreements are essential for all divorces, and a couple is required to agree on how to division their assets, property, and dents, a child custody and visitation plan, a spousal support plan, and on child custody. Making such agreements in military divorce can be difficult and time-consuming, and some special circumstances can arise regarding spousal support, retirement and pension plans, and children.
A military member’s retirement and pension plan are one of the most valuable assets that he or she has. The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows each state to distribute retirement and pension plans in a divorce. If you’re eligible to file in California and your spouse has been served with divorce papers, you must first obtain a court order from the family law courts. The California family law courts have jurisdiction over your divorce but will not automatically distribute the benefits. The courts will follow the state’s laws in distributing the military retirement pay and benefits. As such, a former spouse in California can receive up to 50% of any of the retirement and pension plan that are considered community property.
The Defense Finance and Accounting Service (DFAS) will be responsible for ensuring that a former spouse’s share of the retirement is paid if there was an overlap of ten (10) years for the military service and the marriage. However, if the spouse’s military service and the marriage overlap for less than 10 years, it will be upon the military spouse to make the appropriate payments to the former spouse.
Once the court makes an order for division of the retirement and pension benefits, the Department of Defense will ensure that the orders are enforced and the interests of both spouses are protected. In California divorces, there are several exceptions that apply to marital property and division of property. It can be especially confusing to divide military retirement and pension plan since the criteria used will depend on the specifics of your divorce, your situation, and your lawyer. The best course of action will be working with an experienced military divorce attorney who will explain your rights and ensure that property division is conducted fairly.
Postponing Your Divorce Proceedings
According to the SCRA, if you’re served with a summons while on active duty, you may be able to postpone or “stay” the proceedings for a reasonable period of time to allow you to more fully participate in the process. A stay can be used to postpone a specific aspect of the proceedings or the entire proceedings. Therefore, you can request a postponement of the process at any given time, as long as you’re active duty. The length of the stay must be “reasonable” and this means that it can be no longer than the length of duty plus three months.
Your request must include:
- A letter or other communication stating you’re on active duty and your professional requirements prevent you from appearing. You must also provide a date that you will be able to appear in the case; and
- Your commanding officer’s letter or other communication indicating that your status affects your ability to appear in the case and military leave could not be granted at the time of the letter.
It is worth noting that the courts should agree to stay the divorce proceedings for a specific period of time pursuant to the provisions of the SCRA. It’s not likely that the court will grant the postponement indefinitely. If you would like to extend the postponement, you have to make another request to the court. It’s imperative to keep in mind the fact that it’s completely upon the court to award or deny your request. Making a request to postpone a divorce proceeding can be a challenging task and should not be attempted without the skills of a seasoned San Diego military divorce attorney.
Reaching a Divorce Agreement When Your Spouse Is Deployed in Another Country
If you cannot reach an agreement regarding different issues associated with divorce or the communications have broken down, you should consider getting the help of a skilled military divorce lawyer who understands the laws, issues, facts, and advantages of avoiding litigation. A service member who is far from home or deployed overseas can also qualify for a summary dissolution. Both parties and their attorneys can still communicate through email, Skype, or telephones in an effort to create an agreement on different issues, and successfully complete the divorce.
There are many aspects of a military divorce that are different from other divorce proceedings, which can often make things difficult. As a military spouse or an active duty member of the military member, the best way to ensure you protect your rights and follow federal and state laws is with help from a California family law attorney. Involving an attorney can simplify this often-complex process, especially if it involves high-value assets or child custody. You can rely on the experience and skills of San Diego Family Law Attorney to achieve the best possible outcome in your case. Call us today at 619-610-7425 or fill out our online contact form to schedule your free initial consultation.