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Military Divorce

In Military Divorce

Divorce, Custody, and Support Orders During Deployment: A Guide for Military Members in California

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Deployments are challenging periods for military members, filled with duties that require focus and dedication. However, when personal matters like divorce, custody, or support orders come into play, the situation becomes even more complex. For military personnel deployed away from home, understanding how the Servicemembers Civil Relief Act (SCRA) can be a shield during such times is crucial.

This blog post aims to offer an insightful look into how these legal processes unfold and the role of the SCRA, with a focus on California law.

Understanding the SCRA

The Servicemembers Civil Relief Act (SCRA) is a federal law designed to ease legal and financial burdens on military personnel during active duty. Enacted in 2003, the SCRA encompasses a wide array of protections, including the management of civil judicial proceedings. At its core, the SCRA ensures that military members are not disadvantaged in civil court cases simply due to their service commitments.

Divorce While Deployed

Divorce is a challenging process, and for those in the military, deployment adds an extra layer of complexity. Service members can be served with divorce papers while deployed, but they are afforded certain protections under the SCRA. For instance, if a service member cannot participate in divorce proceedings due to deployment duties, they can request a stay, or postponement, of proceedings. This stay typically lasts 90 days but can be extended under certain circumstances.

In California, the process requires timely communication and documentation. It’s crucial for service members to notify their chain of command and legal assistance office immediately upon receiving divorce papers. Additionally, the SCRA requires that a court grant a stay if the service member shows that their ability to appear is affected by their service.

Custody and Deployment

Custody issues can become particularly stressful when deployment is involved. California law emphasizes the best interests of the child when determining custody arrangements. However, the SCRA offers protections to ensure that a deployment does not automatically lead to a loss of custody for the military parent.

California courts are generally prohibited from using the military deployment of a parent as the sole factor in custody determinations. The courts are encouraged to make temporary custody arrangements that ensure the child’s welfare while maintaining the deployed parent’s rights. Furthermore, once the deployment ends, the service member has the right to request a review of any temporary orders that were enacted.

Child Support Obligations

Service members are obligated to fulfill child support responsibilities, but deployment can complicate these arrangements. The SCRA offers some relief by allowing service members to request a temporary suspension or reduction of child support payments if they can demonstrate that their ability to pay is materially affected by their service. It is important to note that these adjustments are not automatic and require adequate documentation and communication with the court.

In California, child support is determined based on statewide guidelines that consider both parents’ income and the child’s needs. If a service member’s income changes due to deployment, they can file for a modification of the support order. The SCRA can assist by providing a stay of proceedings if deployment interferes with their ability to attend hearings or respond to court actions.

Navigating the Legal Landscape

Dealing with legal matters while serving on deployment demands a clear understanding of both federal protections and state laws. The SCRA is a powerful tool, but it requires proactive steps to be effectively utilized. Military members should be aware of the timelines involved and the documentation required to apply for stays or other relief under the act.

Consulting with a legal professional familiar with military law and California state regulations is highly advisable. Attorneys can guide service members through the complexities of family law issues, ensuring that their rights are protected while they serve their country.

Why Choose Minella Law Group?

At Minella Law Group, we understand the unique challenges faced by military members, especially during deployment. Our team is experienced in navigating the intricacies of divorce, custody, and support orders within the framework of both California law and federal protections like the SCRA. We are committed to providing compassionate and competent legal assistance, ensuring that you can focus on your duties without the added stress of unresolved legal matters. Reach out to us for a consultation and let us help you manage your legal challenges efficiently.

In conclusion, while facing divorce, custody, or support orders during deployment can be daunting, the SCRA provides significant protections to aid military members. By understanding these protections and working with knowledgeable legal professionals, service members can maintain their focus on serving the nation, knowing their personal matters are in capable hands.

For more information or to schedule an appointment or call us at (619) 289-7948. We look forward to helping you with completing your family!

In 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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