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Military Divorce

Understanding Military Divorce

Understanding Military Divorce

Military divorce is usually considered to be significantly different from a non-military divorce. These differences generally make themselves known in the process of obtaining personal service, complying with rules and regulations set by the military, and dividing a military pension.  Military divorce has special procedures that need to be followed especially if the member is active duty.

In order for any court to assert its jurisdiction over a military divorce, the Petitioner will have to serve the active member with a petition for the dissolution, as well as a valid summons. Because of this, if the service member in question is currently deployed overseas, the process of completing a military divorce can be somewhat challenging.

The Military and Divorce

Divorce is not a simple process for anybody. Military divorce can be especially taxing within California because of the requirements the state imposes on service members that are deployed, living overseas or currently existing outside of the California jurisdiction.  Parties who are considering divorce with an active duty military member will often benefit from learning more about the path that is ahead of them before they start this trying process.

If you are the Petitioner in the case and your spouse is a service member who has been deployed overseas, completing service becomes extremely difficult.  The Servicemembers Civil Relief Act (SCRA) will be a factor in your case.  SCRA will postpone or suspend certain legal matters that are pending in court while the servicemember is located. The law states service members cannot be held responsible for not replying to a divorce petition when they are deployed, but it does not allow the military spouse to neglect the papers. If the service member fails to respond to the divorce, then the court may choose to appoint a reserve, civilian natural or active duty person as an officer of the court to serve the papers on their behalf.

The SCRA will appoint an attorney to located the military member and report to the court on his location and ability to participate in a divorce. During that time, there will be a stay in the case meaning the court cannot make any orders for support or division of assets.  If you are in need of support and your spouse is not paying, you should immediately contact their command to enforce military regulations for family support.  The court cannot make any orders while the stay is in place.

Federal Laws Regarding Military Divorce

Recently, federal laws and regulations have undergone some changes that should make personal service much simpler for military couples with children when the spouse is stationed overseas. Regardless of the location of the spouse in active duty, uniformed service members and federal agencies will be required to take on the responsibility of facilitating the legal process.

Military assets, including military pension of the service member, are valuable, and can be divided between spouses much like the standard assets within a regular divorce case. However, it is necessary for both spouses within a military divorce to understand how the court deals with dividing military pensions.  Not all servicemembers will be entitled to a pension, it does depend on the years of service.  If there is a pension, it will be divided by the time rule which looks at the length of service while married.  The portion that was acquired during marriage wil be split 50/50.

There other assets that are only issues in military divorce that need to be give special care. There is the Survivor Benefit Plan (SBP) election that needs to be discussed.  SBP needs to be ordered in order to be received and there are different levels of election, not all the elections will be covered by support payments.  There is also the Servicemembers Group Life Insurance (SGLI) that needs to be divide.

There are assets that need to be divided in military divorces that are not present in a non-military divorce.  It is important to understand what you are entitled to and what needs to be included in your divorce judgment.

Residency Requirements

In order for the court to have the ability to properly divide a military pension, the court must have the military spouse’s legal consent, or legal residence within a state. A spouse simply being stationed within a state for a temporary period of time does not constitute residency.  If the military member has maintained residency in a different state, California may not have jurisdiction to divide the military member’s pension.  Consent of the spouse does not have to be verbally expressed, as long as the court has proper jurisdiction it has the ability to divide military retirement, regardless of the overall length of the marriage.

Minella Law Group can Help!

As the article expresses, there are very specific rights involved in a military divorce.  An amicable military dissolution can be reached, but should be done with an experienced attorney who knows what to look for.

If you are facing a divorce and the United Stated Military is an employer, the qualified staff at Minella Law Group can assist you.  For more information or to schedule an appointment for a no cost consultation, click the button below, or call us at 619-289-7948. We look forward to meeting with you!

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Fathers Visitation Rights in San Diego

Fathers Visitation Rights in San Diego

Maintaining fathers visitation rights after a particularly heated divorce or during a separation procedure can be complicated.  It really helps to understand what fathers visitation rights you have as a father under California state law. If you and your ex have recently filed for divorce, the chances are high that you are going to be going through an emotionally fragile situation.  It is very likely that making strategic and sensible decisions may be more difficult, having emotional support through this process is important.

Knowing what fathers visitation rights in San Diego are in comparison to other custody orders, may help to ensure that you are well informed.  This is important so you do not lose any of your entitlements as a Father that you so desperately need in order to be able to continue to provide the care and attention to your child.  It is important to understand fathers visitation rights in San Diego.

What’s the difference between Legal Custody and Physical Custody?

Physical custody refers to the place in which the child will live, whereas legal custody refers to the individual rights of the parent to make decisions in the best interest of the child. This may include a parent deciding which school the child will attend, or whether they will seek certain forms of medical attention. As a father, you have the right to make decisions about your child with the other parent jointly.  Fathers visitation rights includes having joint legal custody to be able to make decisions about your child with the other parent.

The Role of Mediation in Visitation and Custody

Most of the time, when a couple is going through a divorce, the judge in question may order them into mediation in an attempt to resolve the dispute with as little conflict as possible. The idea is that the parents, by working together with an objective individual, will have the best opportunity to create a plan that protects the child’s best interests, and gives them both the results they need. The only threat that a mediator can present to a divorce case takes place if the couple going through the divorce cannot come to a reasonable agreement during their mediation sessions. Fathers visitation rights are addressed in this process, in San Diego mediation is a mandatory part of a custody case.

If an agreement cannot be formed, then the mediator will construct his or her own recommendation for the best options in visitation schedules and custody options. Since mediation is mandatory in San Diego, most judges will automatically give the recommendations of a mediator automatic approval, however if you do not agree with the mediator’s suggestion, you do have the right to contest the decision at court with an evidentiary hearing.

The mediator will take into consideration who has been the primary caregiver, where the parties live, how often the parties work, and the desires of the child.  It is important to fathers visitation rights, that these factors be presented accurately as it can mean the difference between joint physical custody or seeing your child on alternate weekends.

Rights to React Against Slander and Insults

When in the process of a divorce, insults usually go back and forth between the former wife and husband when they are alone and out of earshot, turning the children involved into prisoners that are caught between two important people in their lives. The result of this could be that your ex-wife starts to bad-mouth you in front of your children, which can be highly upsetting for you.

As a father, you have the right to keep the other parent from alienating you from your children through insults, by requesting a hearing that allows you to seek sanctions against your ex-wife. The rights of father’s in custody and visitation cases are more expansive in certain states than others. In California, for example, this may not be case and this is why you need to have a hard working and committed attorney who is walking you through this process so you know what the law is and how this affects you. Every case has different orders, as part of your fathers visitation rights you can make sure the orders include restrictions on communications with any minor children.

Minella Law Group can Help!

The dedicated attorneys as Minella Law Group can help guide you through the difficult and emotional process of seeking custody orders as a father in San Diego.  Minella Law Group is experienced in child custody cases and can give you immediate hands on representation that you need.  For more information or to schedule a no cost consultation, click the button below or call us at (619) 289-2748.  We look forward to helping you!