Are you seeking a divorce and do you or your spouse belong to any of the military services? Do you reside in California? If the answer is yes, then you must know that military divorce cases in California are pretty complex- they involve both the Federal and Californian divorce laws.
The unique circumstances surrounding military divorce cases require in-depth knowledge and understanding of these laws.
In this detailed blog post, we will explore the importance of having a divorce lawyer experienced in handling cases for military personnel. From the intricacies of military benefits to the complexities of deployment, a skilled military divorce lawyer can provide invaluable assistance throughout the divorce process.
Understanding the Unique Challenges of Military Divorce
First up, let’s discuss what makes military divorce cases unique.
Military service brings with it a set of unique challenges- a career in the army, marines, or air force is very stressful and can strain a marriage leading to divorce. Military divorce, in turn, is equally difficult.
Two key factors that differentiate military divorces from civilian ones are: complexity and duration. Factors such as frequent relocations, deployment, and specific military benefits require careful consideration and expertise.
Additionally, spouses in the military may have to wait a long time before their divorces go through because of the military legal procedures. Sometimes, the state laws override military ones- for example, spouse protection law will not be applicable because of a state law.
California laws are also different from other states. For example, the Military Spouse Protection Act provides certain entitlements not available in other states.
A competent military divorce lawyer will possess a deep understanding of these challenges and be equipped to address them effectively.
Military Regulations and Acts For Divorce
The following acts come into picture when dealing with military divorce cases.
- Servicemembers Civil Relief Act (SCRA): This enables military personnel to postpone or suspend civil actions or lawsuits against them. In the case of divorce, this act helps military personnel to :
- Get a stay on default judgements while on active military duty
- Postpone divorce case hearings for sometime if they are summoned
- Spouses Protection Act (SPA): This enables military personnel to sue for divorce without any grounds such as adultery and without any career consequences.
- Uniformed Services Former Spouse Protection Act (USFSA): This act declared military pensions as assets that can be shared equally during divorce but leaves it to states regarding its implementation.
- Soldiers and Sailors Civil Relief Act (50 UCS section 521): This act enables suspension of divorce proceedings if a spouse is on active military duty for up to 60 days. This helps service people avoid summons or being served the papers.
Military Divorce in California
Navigating the intricacies of military divorce rules in California can be challenging and confusing. It is highly recommended to seek the guidance of a divorce attorney experienced in handling military divorces.
Regardless of the military status of either spouse, whether on active duty, retired, or in the guard or reserve, a military divorce can have significant implications.
Additionally, it’s important to note that California is a no-fault state, and so, grounds such as adultery and desertion cannot be used as direct reasons for divorce. However, they may be taken into consideration during child custody proceedings or during division of property.
Whether filing for a military or civilian divorce in California, the grounds for divorce include:
- Irreconcilable differences
- Spouse’s permanent incapacity, such as clinical insanity or disability
The expertise of a knowledgeable military divorce attorney can prove invaluable in navigating these legal complexities and ensuring that your rights and interests are protected throughout the divorce process.
Factors Impacting Military Divorce
Several factors impact military divorce, such as:
- Residency: Filing for divorce as a military couple can present complexities due to the worldwide stationing of service people. Generally, the spouse filing for divorce does so in their county of residence. The military spouse must file in the state where they are stationed or in their home state.
- In California, one of the spouses must meet residency requirements. They must be living in the state for at least six months and in the specific county for at least three months. Otherwise, they may need to wait or file in the state where one of them resides.
Spousal deployment: When filing for divorce while your spouse is on active duty, the rules differ and are more complicated. The Servicemembers Civil Relief Act (SCRA) protects active-duty personnel from civil legal procedures, which means that a default procedure does not apply. Also, court hearings are postponed until the military spouse’s active duty concludes, with a 90-day delay after their duty ends.
- Spousal support: In military divorces, a higher-earning military spouse may be required to provide spousal support. This is based on factors, such as the length of the marriage, financial status of both spouses, education, employability of the dependent spouse, age, and health of each spouse.
- However, the amount of spousal support cannot be greater than 60% of the military spouse’s wages. Moreover, the duration of support may be limited based on the length of the marriage.
- For example, if a couple is married for less than 10 years, alimony can be paid for only 5 years. Alimony payments cease upon the dependent spouse’s remarriage or death.
Child custody, support, visitation rights: California courts treat military parents equally when it comes to child custody, regardless of their active service status. Deployment (or being stationed out-of-state) does not automatically modify custody or visitation arrangements.
- Military families are encouraged to pursue uncontested divorce, subject to agreements, without any court intervention. Child support in California is decided based on state guidelines, considering factors such as household income, number of children, and time spent with each parent. Again, the amount for child support cannot be more than 60% of a military spouse’s salary.
Equal division of military benefits/pension: In military divorces, special laws determine the sharing of retirement benefits.
- The USFSPA provides certain benefits, such as free medical treatment, access to military facilities, and survivor’s benefit plan eligibility to spouses after divorce. In California, the spouse is entitled to a part of the retirement income based on whether the marriage lasted a minimum of 10 years while on active duty.
- For detailed information on military benefits, it is recommended to contact a VA regional office.
Division of property/assets: In both military and civilian divorces, the property-division rules are the same. California follows community property laws, where assets and debts acquired during the marriage are divided equally. Other properties or assets bought before marriage or inherited are considered as “separate property”, which can be retained by the respective spouse. If the couple cannot agree on property division, the court will intervene, which can lead to delays in the process.
Role of Military Divorce Lawyers
A military divorce lawyer serves as an advocate and guide, representing the best interests of their military client. From providing emotional support to protecting a service person’s legal rights, a military divorce lawyer can be invaluable.
They are experts and possess in-depth knowledge of federal and state laws that apply specifically to military divorces. Here are few important aspects that the military lawyer should know:
- Military pensions/benefits: They should be able to discuss the intricacies of dividing military pensions and retirement benefits, including the USFSPA and the Defense Finance and Accounting Service (DFAS).
- Deployment/custody matters: They must explore the challenges associated with deployments, their impact on child custody, and visitation arrangements, as well as the importance of creating comprehensive parenting plans.
- Residency/jurisdiction issues: They must explain the complexities of determining jurisdiction in military divorces, considering factors such as the domicile of the military member and the state’s legal requirements.
- Servicemembers Civil Relief Act (SCRA): They must understand the protections provided by the SCRA, such as a stay on legal proceedings during active military service, interest rate caps on debts, and lease terminations.
Choosing the Right Military Divorce Lawyer
Selecting the right lawyer is crucial for a successful military divorce.
Key considerations when choosing a military divorce lawyer include:
- Experience and expertise in military divorce cases: A proven track record in handling military divorce cases and staying updated on relevant laws and regulations is a must.
- Strong communication and support: Clear and open communication between the lawyer and their military client, ensuring a strong support system during the divorce process is necessary.
- Client testimonials and reviews: Research, consider testimonials, and reviews from previous clients to gauge the lawyer’s reputation and effectiveness.
Filing Process for Military Personnel
The divorce filing process for military personnel is similar to that of civilians, with a few additional considerations. Here are the general steps involved:
- Consultation with an attorney: Seek guidance from an attorney experienced in military divorces to understand the specific laws and regulations that apply to your situation.
- Residency requirements: Determine the residency requirements for filing a divorce in the state where you or your spouse reside. These requirements may vary depending on the state.
- To file for divorce in California, at least one party must meet residency requirements:
- By being a resident of the state for at least 6 months
- Residing in the county where the case is filed for the past three months.
- While using the service person’s residence may seem easier, it can be challenging due to frequent military relocations and potential lack of disclosure. If the eligibility requirements are met, the divorce can be filed in the California county where the filer currently resides, regardless of the spouse’s location.
- Jurisdiction determination: If you and your spouse reside in different states or countries due to military service, you need to determine the appropriate jurisdiction to file for divorce.
- Filing for the divorce: Prepare the necessary paperwork, including the divorce petition and any additional forms required by the court. File the documents with the appropriate court and pay the filing fees.
- Forms for divorce filing include:
- Proof of Service of Summons
- Financial data sharing: The couple must mandatory share financial data with each other after filing for divorce (within 60 days). These include:
- Disclosure declaration
- Income and expense declaration
- Property/asset declaration
- Serving of papers: Ensure that your spouse is properly served with the divorce papers. The rules for service may differ depending on whether your spouse is currently deployed or stationed away from home.
- To move forward with your divorce, it is necessary to have an official document signed by a server and filed along with your paperwork. However, serving someone with divorce papers can be challenging, especially with military members who may be difficult to locate due to post-9/11 protections.
- Hiring a lawyer experienced in serving military personnel or working with contractors can help navigate this process. It’s important to be aware that response timelines in military divorces may be longer than typical divorces, as the spouse can ask for extensions.
- Response and negotiation: Once your spouse receives the divorce papers, they will have a specific timeframe to respond. Negotiations and discussions may take place to resolve issues such as child custody, spousal support, and property division.
- Court proceedings: If an agreement cannot be reached through negotiations, the case may proceed to court. Both parties will present their arguments and evidence, and a judge will make decisions on unresolved issues.
- Finalizing the divorce: Once all issues are resolved and a settlement is reached or determined by the court, the divorce decree will be issued, finalizing the divorce.
It is important to note that the divorce filing process can vary depending on the specific circumstances and the laws of the state in which the divorce is filed. Seeking professional legal advice is crucial to ensure you navigate the process correctly.
Military Divorce Attorney Near Me
If divorce is on your mind and you belong to the military services, it’s time to get in touch with a reliable and experienced military lawyer.
At Heath Baker Law, in California, Palm Desert, and Riverside area, whatever your legal requirement is, we got you covered.
Our expert military attorneys can easily navigate military laws and provide you with the best service as always. With a strong focus on family laws, such as divorce, spousal support, child custody, and visitation, we offer tailored services.
Call us or request a free consultation now!