Getting divorced can be challenging and is rarely easy. The process becomes even more complicated when you or your spouse are military members. The military divorce process is unique because of deployments, military benefits, and the intersection of state and federal laws. Below is an essential military divorce guide to help you understand the process and some of the nuances.
Military Divorce Checklist: How to File for a Military Divorce in California
Follow this military divorce checklist to help you navigate the complex process.
Determine Where You Can File
A court can only grant a divorce to military members or spouses if it has jurisdiction to hear the case. With military members often stationed throughout the country and the world, jurisdiction may not be straightforward. Generally, a spouse will petition for divorce in the county where they live. A military spouse must file for divorce in the state where the military member is based or in their home state.
To file for divorce in California, at least one of the spouses must be a legal resident of the state for at least six months and have lived in the county of filing for at least three months. If the military member has been stationed in California for at least six months, you may qualify to file for divorce in California. If neither spouse meets the residency requirements, you may need to wait to file your divorce or file in the state in which one of you resides. An experienced military divorce lawyer can help determine where to file based on your circumstances.
Complete a Petition for Dissolution of Marriage
Civilian and military divorces in the Golden State begin by filing a Petition for Dissolution of Marriage. The petition includes information about the spouses, any minor children, assets, and grounds for the divorce. In California, the grounds for divorce include:
- Irreconcilable differences—the marriage has broken down entirely and is not salvageable; or
- Permanent legal incapacity of one spouse—this applies when a determination has been made that one spouse is clinically insane or permanently legally incapacitated to make decisions.
California is a no-fault divorce state, which means no one has to prove that either spouse did something wrong to cause the divorce.
Serve a Copy of the Petition on Your Spouse
The Servicemembers Civil Relief Act (SCRA) contains protection against filing a default divorce judgment against a service member who has not consented to the divorce or been a part of the divorce process due to their active service. Under the SCRA, you must notify a deployed spouse of the divorce proceedings and give them time to respond. It can be difficult to serve an active-duty spouse because their location may be unknown or in a foreign country. You may be able to seek assistance from a spouse’s commanding officer, but they are not obligated to help serve divorce papers.
The easiest way to serve a military spouse is if they agree to accept service. However, they may still be able to put the proceedings on hold under the SCRA. If a non-military spouse files for divorce, no court hearings will occur until the active duty ends. The military spouse can also postpone divorce proceedings for 90 days after service.
Military Divorce Guide: Issues to Resolve
When drafting your petition for divorce, you need to address the basic issues or terms of your divorce as follows.
Property Division
California is a community property state. Generally, all property and debt obtained during the marriage is joint property and divided fairly between spouses. Military divorces are no different for property division.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) grants state courts the power to divide military retirement pay, health benefits, and other benefits. A court can also consider the length of the marriage and the time the military spouse spent on active duty to calculate each spouse’s share of property. The USFSPA also has guidelines for calculating and dividing military pensions.
Child Custody and Child Support
California provides legal protections for military parents regarding custody of their children. California courts are most concerned with ensuring the best interests of the child. The best custody plan is one that you and your spouse work out together and agree upon.
Your attorney can also help you calculate child support according to the state’s guidelines. If spouses agree, they need to put the agreement into the petition. As long as the agreement is aligned with the law and public policy concerns, the judge is likely to sign off on the agreement—making the dissolution process go more quickly and smoothly.
Spousal Support
Spousal support is commonly known as alimony. The court can order one spouse to pay financial support to the other in some circumstances. For example, if one spouse makes significantly less than the other or has forfeited their career goals for the family, the court can use its discretion in granting support until that person can get training or whatever they need to become financially independent. The amount and length of support varies greatly. Your attorney can help you come up with a proposal for your petition that would be reasonable, but the judge must ultimately sign off on it.
Get the Support You Need for Your Military Divorce Process
Military divorces can bring unique challenges to an already complicated and emotional process. A military spouse facing divorce or legal separation should understand their rights and obligations under state and federal laws. An experienced military divorce lawyer can be your trusted advisor.
Pakpour Banks can review the facts of your case and help you understand the best way to proceed while protecting your best interests and those of your family. Mr. Banks and Mr. Pakpour have helped many military spouses navigate complex state and federal laws to achieve fair results. We understand that all divorces are emotionally challenging, so we strive to avoid unnecessary costs and turmoil. Contact Pakpour Banks LLP today to learn how we can help you through your military divorce.
Resources
Uniformed Services Former Spouses’ Protection Act (USFSPA), link
Brian enters the family law profession with a refreshing approach to these proceedings: heal families; don’t destroy them. In some cases, this means the family is going to look different than it did before. In other cases, this means a new family is created where there was none before. Either way, individuals should leave family court knowing their voices were heard, and with healthy attitudes about themselves and those they love.