Guide to California Military Divorce

San Diego is home to more than 115,000 active-duty service members in the Navy and Marine Corps, so it makes sense for a law firm to reach out to those service members by providing legal services aimed specifically at representing those San Diego residents. Bickford Blado & Botros understand the need for military-focused attorneys who have a deep comprehension of the laws that apply to military members. Representing military divorce clients falls under this category.

Military divorce can be a bit different from civilian divorce, and it is important to understand exactly how it is different if you are involved in a military divorce. Areas such as child custody, child support, property division, and even the initial petitioning for divorce can all be complicated for military service members. Below is a guide to understanding these differences within the realm of California family law.

Petitioning for Divorce

Determining jurisdiction for a military divorce case can be complicated, coupled with CA residency requirements, and if you don’t know how these laws apply to military divorce, your case can get caught up in red tape. Because military families or service members move around often, meeting residency requirements can be a challenge. However, only one spouse needs to meet those requirements, and it may be easier for a spouse who is not a military service member to meet these requirements.

If one spouse lives in the state of California for at least six months and in the county in which they live and plan to file for at least three months, they’re eligible to file for divorce in California, regardless of where their spouse is stationed. This would require the individual to be the petitioner.

Whether the petitioner of the divorce is an active-duty military service member or a civilian spouse, they may file divorce paperwork where they or their active-duty spouse is stationed. If you are unclear as to where you can file for divorce, a family law attorney with experience in military divorce cases can advise you regarding your unique situation.

Serving Papers

All California divorce petitions require that the spouse of the petitioner be served with papers notifying them of divorce proceedings against them. Because it is often hard to locate or track down military service members, serving them is oftentimes complicated. Because of this, active-duty service members who are deployed are not subject to default laws that force court orders of divorce due to non-responsive spouses.

Therefore, a civilian spouse cannot divorce their active-duty service member spouse while they’re deployed. The Servicemembers Civil Relief Act (SCRA) protects active-duty military personnel from missing civil judicial processes like divorce. Because deployment prevents them from being summoned or from attending hearings, there can be no court proceedings while an active service member is deployed.

When their deployment is over or upon the conclusion of their service, divorce proceedings may continue following an additional wait period enacted by the SCRA. This is a required 90-day wait period following the completion of the military spouse’s duty before the divorce can continue.

Spousal Support

Much like the special support payments considered in civilian divorce cases, whichever spouse earns more is usually the supporter. Certain factors determine whether or not a party will receive court-ordered support payments. These factors are listed below.

• How long you were married – If a marriage lasted less than ten years, the supporting spouse will only be required to pay spousal support for half of those years
• The financial responsibilities, needs, and expenses of both parties
• The income of both parties – Spousal support cannot exceed 60% of the income of the military spouse
• The dependent spouse’s potential to earn income, including their level of education and employability skills
• The age and health of both parties

Child Custody

There’s no discrimination of military parents in active service in regard to child custody amid a military divorce. An uncontested divorce is ideal in situations in which parenting schedules are nontraditional because it allows a family to write their own parenting plan. Alternatively, in contested divorces, parenting plans are subject to the court’s ruling, which may delineate a visitation schedule that is not ideal for visitation amid current or potential military deployment.

Division of Military Retirement Benefits

Military benefits are a heated issue in most military divorce cases. Typically, retirement benefits earned during a marriage are often considered community assets that have to be divided in divorce proceedings. However, in military divorce cases, a military spouse is entitled to a portion of the military member’s retirement income if the marriage overlaps with at least 10 years of the military member’s active duty.

The Uniformed Services Former Spouses Protection Act (USFSPA), however, provides benefits to ex-military spouses following divorce. These benefits include access to free medical treatment, eligibility for the Survivor’s Benefit Plan (SBP), and access to military commissaries and exchanges, among others. The USFSPA regulates, calculates, and distributes military retirement benefits to ex-spouses.

FAQs

Q: What Are the Eligibility Requirements for Military Divorce in California?

A: First, it is important to understand that divorcing military members, whether one spouse is a military member or both are military members, must meet certain residency requirements before they’re eligible to file for divorce in California as well as the county where they live.

Q: What Are the Grounds for Divorce in California?

A: California’s simplified divorce process requires the establishment of only two legal grounds for divorce. This includes irreconcilable differences, which led to a broken and irreparable marriage, and the permanent legal incapacity of one spouse to make decisions.

Q: Can a Divorce Be Denied in California?

A: A divorce can be denied for many reasons, many of which are related to a failure of one of those spouses to follow proper state procedures to file for divorce, such as filing a petition before residency requirements are met or providing misrepresented information on the petition, whether on purpose or an accident.

If all conditions required of divorce petitioning and proceedings are met, the divorce cannot be denied unless there is evidence that one party concealed assets or committed some other form of criminal activity, such as fraud, amid divorce proceedings.

Q: What Is the 10/10 Rule?

A: The 10/10 rule refers to the requirement of a former spouse of a military service member to have been married to their spouse for at least ten years that overlapped with at least ten years of their spouse’s active-duty service to be eligible to receive a portion of their military pension following divorce.

Get Legal Advice on Military Divorce from an Experienced Family Law Attorney

Bickford Blado & Botros have experience representing military service members and military service member spouses in divorce cases. Our well-versed attorneys can explain the law, offer legal advice, answer questions, and proceed with representation and litigation if necessary to optimize the outcome of your military divorce. Contact us for a consultation that will ease your mind regarding your legal matters ahead.

 

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