Many couples are mistaken when assuming that a military divorce is the same in regards to process and requirements as a standard civilian divorce. This is not the case and couples should educate themselves on the varying differences to ensure they move forward with the process in the most efficient way possible. A California Military divorce creates many issues a couple must properly address or be aware of in order to proceed with obtaining a dissolution.

Military Divorce Protections

Members of the military are afforded certain protections from California divorce law, such as protection from falling into a “default” dissolution status. According to California Family Law a divorce falls into a default status if a party fails to respond to the party who petitions for a divorce. Active military members, on the other hand are essentially given relief from falling into default status and becoming divorced without their knowing or decision.

In the discretion of the California court, under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521, if a person is serving in the Army, Navy, Marine Corps, Air Force, Coast Guard, or in the Nation Guard on active duty, their military divorce process can be stayed or delayed for the entirety of the active service member’s deployment and an additional 60 days thereafter. This protection is automatically awarded to a service member (usually those serving during a time of war) however can be waived if the active duty party wishes to proceed with the divorce.

Military Divorce Residency Requirements and Stipulations

When a couple wishes to file for a military divorce there are residency requirements that must be fulfilled. A military divorce can be filed in one of three jurisdictions: the legal residence of the military member; the legal residence of the spouse; and the state that the service member is stationed in. Typically to obtain a Military Divorce filing in California the following is required:

– You or your spouse must reside in California

– You or your spouse must be stationed in California

Military members are afforded the ability to live or be stationed in another state from which they claim residency. The non-active spouse is not afforded the same privilege.

Serving an Active Military Member with Divorce Papers

Similarly to California divorce laws, the grounds for a couple to file for a divorce are the same. As California is a no fault state, there is no requirement for either party to show or prove fault. Parties must file under one of two ground: irreconcilable differences, meaning the marriage cannot be saved in their opinion, or more rarely is the ground of incurable insanity.

As with standard California state law for civilian service of process, the active duty spouse is required to be served with the summons, as is the responding party. Proper service is usually delivered personally but there are other ways to suffice service of process as identified in the California Code of Civil Procedure. A family law attorney who specializes in military divorce can help either party effectively ensure they meet service requirements properly.

Division of Assets in Military Divorce

In the late 1970s and early 1980s, some state courts started treating military retired pay as “community property,” often awarding a portion of the pay to the previous non-military spouse. One such case from California found its way through the federal courts to the Supreme Court, who ruled in McCarty v. McCarty (1981) that federal law did not allow retired pay to be treated as joint property. In response to this judgment and influential ruling, Congress passed the Uniformed Services Former Spouse Protection Act quickly thereafter, in 1982. This act allowed and currently allows state courts to treat disposable retired pay either as property solely of the member, or as property of the member and his spouse according to the state law and its discretion.

Members of the military have a few unique assets that don’t necessarily apply to civilians specifically, but can be incredibly valuable. Most notably would be the service member’s pension and retirement fund.  In addition to the California laws regarding the division of assets, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFPA is the governing statute when it comes to the division of military marital assets, and offers payment of the retired party’s pay to the former spouse. This law does not automatically authorize payment to a former spouse and requires the couple to have been married at least ten years or longer while the member of the military was actively serving.

Child Support and Alimony for Military Divorce

Most of the laws regarding a military divorce are similar to a civilian divorce when it comes to child support and the allocation of alimony. However there are a few unique challenges regarding military divorce specifically. For example, a military divorce provides a stipulation stating the child support and alimony payments cannot exceed 60% of the serving member’s pay and allowances. Child support and alimony amounts are determined by the normal California divorce guidelines.

The court is also authorized to impute additional income to a spouse for the value of the benefits they receive which reduce living expenses (e.g. housing). Also, there are nuances with regard to whether the service member’s pay and allowances are taxed, all of which has an effect on the guideline calculations.

How a Family Law Attorney Can Help You with your Military Divorce Matter

In times of emotional stress, matters of dissolution can be complicated, especially for those who have to configure requirements and specific stipulations that surround a military divorce. A California Military divorce may require certain things or afford certain protections that couples may be unaware of. If you have questions regarding residency requirements, how to serve an active military member, the allocation of alimony or child support in a military divorce, or whether or not retired pay will be awarded to a non-military former spouse,




in    0

About Fischer & Van Thiel, LLP