Military marriages are not the same as civilian marriages – military spouses spend months or even years apart, and may have different priorities than other married couples. Military divorces also have significant differences compared to civilian divorces, especially if the spouse is away on active duty at the time of the filing. If you’re part of a military couple considering divorce in California, here is what you need to know.
Where to File for Divorce
Since active military members live throughout the United States and the world during stationing, you may run into issues when considering where to file. In a typical marriage, a spouse will file for divorce in the county in which they live. A military spouse must file for divorce where the service member is stationed, or in the state where he or she is a resident. If you have not been stationed in a location long, these may not be the same thing. If you are not yet a legal resident of the state where you currently live, you must either wait or file in the state where your spouse has residency. One of the spouses must reside or have a station in California to file in this state.
What Happens If Your Spouse is Deployed?
If you file for divorce while your spouse is deployed or on active duty for an extended period, the laws are slightly different. As in a civilian divorce, the spouse that did not do the filing must receive a summons and a divorce application. Yet getting these documents to deployed spouses can create an issue. The Servicemembers Civil Relief Act (SCRA) is a federal law that protects military members when they enter active duty. The SCRA protects members from things such as:
- Credit card interest rates
- Evictions
- Income tax payments
- Life and health insurance payments
- Mortgage interest rates or foreclosure
- Rental agreements
- Security deposits
- Vehicle leases
The SCRA also protects members from civil judicial proceedings – including divorce summons. If this law prevents active members of the military from being able to respond to a divorce action, the courts cannot hold the person in default. This contrasts with a nonmilitary divorce action, in which no response from the spouse leads to a default process, or an uncontested divorce.
In a default divorce, the spouse that did not answer the summons gets no say in property division or child custody decisions. The SCRA allows the court to delay divorce proceedings for the duration of the spouse’s active duty. If the deployed spouse so chooses, he or she can waive the divorce process postponement. However, in this case, the active duty member should hire an attorney to protect his or her rights during the proceedings.
What to Expect During the Divorce Process
There are additional differences between military and nonmilitary divorces. The military requires spousal and child support to begin on the date of separation, but California law determines the maximum amounts a service person will pay. The Uniformed Service’s Former Spouse Protection Act decides how to calculate and divide military benefits. There are also tax issues and service member’s basic allowances to take into consideration when deciding property division and monthly payments for spousal or child support.
There are many aspects of a military divorce that differ significantly from other divorce proceedings. The best way to ensure you follow state and federal laws and protect your rights as an active duty military member or a military spouse is with help from one of the best San Diego divorce lawyers in the county. Retaining an experienced family law attorney can make this often-complex process much simpler for those involved, especially if your case involves child custody or high-value assets.
