When members of the military service file for a divorce, the legal process is different than for civilian couples. There are aspects of the legal procedure for divorce that apply to military members. Hence, you should hire an attorney who has experience and knowledge working with members of the military.
Here are some of the ways a military divorce is different from civilian divorce in California.
Filing for Divorce
When filing for a military divorce in California it is important that you file your petition in the right court. You must file in the state where you have resided for six months and in the county where you have resided for the last three month. If your spouse is active duty, there is a chance your spouse may not be in California do to deployment or trainings. Even though they may not not be in California, you still must serve the divorce papers.
While the process is similar to a civilian divorce, serving papers can be a challenge. If your deployed spouse is at a military base, you may need the help of a sheriff to serve the papers. For a military divorce, the Service Members Civil Relief Act (SCRA) can postpone a divorce to protect deployed military personnel who cannot respond to summons. In the case of a civilian divorce, failing to respond to summons results in an uncontested divorce.
Division of Military Pension
Another difference between civilian divorces and military divorces is the division of military pensions and retirement benefits. If the couple does not have many debts or marital assets to split, an ex-spouse can claim a share of the military personnel’s pension under the Uniformed Services Former Spouses’ Protection Act. To get a share of military retirement pay and benefits, you need to obtain a court order. The rules for distributing military pensions vary depending on your jurisdiction.
A former spouse may be entitled to up to 50% of the retirement benefits classified as community property in California. Community property is all property that a couple acquires while they are married. After an order for distribution of retirement benefits is made, it is enforced by the Department of Defense.
However, special rules are used to determine whether an ex-spouse will receive a military member’s pension. First, the ex-spouse should have been married to the active service member for at least ten years.
Child Custody and Visitation and Child Support Orders
Military divorce child custody is different from civilian child custody in terms of how the court evaluates custody orders modifications. If your ex in the military is awarded physical custody and is activated to military duty, their rights will be protected until they return.
According to the California Family Code Section 3047, if a parent is absent, relocates, or violates custody and visitation orders because they are activated to military service, this is not enough to modify a child visitation or custody order. This means you cannot file a permanent modification to a custody or visitation order while your ex-spouse is deployed.
However, the court can implement temporary orders that expire when your ex-spouse returns from duty. Upon your ex-spouse’s return, the orders will go back to the way they were.
Regarding child support, the court will follow the usual guidelines when deciding on the amount of child support a military member should pay. According to California law, the sum of child and spousal support should not exceed 60% of the service member’s pay.
Military divorces are slightly different from civilian divorces in terms of default judgments or postponing a divorce, property division, and amendment of child custody and visitation orders. When filing a divorce from an ex-spouse who is an active military member, you should consult a family lawyer who is experienced in military divorces like the ones at Minella Law Group.