Divorcing an active duty service member can be intimidating. There are special rules and requirements that apply to U.S. service members and their spouses when they divorce. Military divorce is governed by both state and federal laws. This means that federal laws may affect where divorcing couples end up in court or how military pensions are divided and California state laws may affect how alimony and spousal support may be issued.
Jurisdiction in a Military Divorce
Before a court can grant a divorce to military members or spouses the court must have “jurisdiction” or the authority to hear the case. For military personnel, the divorce procedure for a military spouse in California is the same as the procedure followed by civilian residents. You or your spouse must be able to claim California as a legal residence. When this condition is met, you’ll file for divorce in the California county where you or your spouse reside. Military members and their spouses have three choices when it comes to where they can file for divorce – they can file in the state where: the spouse filing resides, the military member is stationed and the military member claims legal residency.
It is important to understand that the state in which you choose to file will determine what grounds are required for divorce, property distribution, child custody, and child support issues. Additionally, like civilian retirement benefits, military pensions are subject to division between spouses in the event of divorce. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), state courts may treat military retirement pay as either sole or community property depending on the state.
Special Rules for Active Service Members
A special rule for active military members is the Servicemembers Civil Relief Act (SCRA). Service members can apply for a “stay” or a temporary halt of any civil action, divorce and including child custody proceedings, which are initiated against them while on active duty or within 90 days from their release from active duty. This stay is in place so service members can devote their time and energy to defending the nation and not face orders or judgments against them because they are unable to respond or appear in court.
Spousal and Child Support
The military has special rules for alimony and child support. A court may enforce spousal and child support obligations by court-order, garnishment, or voluntary or involuntary allotment.
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 serviceperson will pay. The Uniformed Service’s Former Spouse Protection Act decides how to calculate and divide military benefits.
Consult with an Attorney
Military divorce requires the help of an experienced divorce lawyer; it is the best way to ensure you follow state and federal laws and protect your rights as an active duty military member, especially if your case involves child custody or high-value assets. An experienced local divorce attorney can help you understand the different laws that may apply, your rights as member of the armed forces or as a spouse of an active military member.
