As a military spouse, you may feel overwhelmed and worried about what a military divorce will mean for you and your family. Though military divorces come with unique challenges, you can get through this difficult time with the correct information and legal support.
In this blog post, a member of our divorce attorney team will share what you need to know about military divorce in California. If you have any questions, call Seabrook Law Offices at (408) 560-4487 to schedule your consultation. Our compassionate and experienced attorneys are here to help.
What Is a Military Divorce?
A military divorce is a divorce between two individuals where one or both are currently serving in the military. Like a civilian divorce, a military divorce entails the same legal process, including the division of assets and custody of children according to state law. However, there are some unique aspects to a military divorce, such as the effects of military deployments on the divorce proceedings and military benefits.
While military divorce is governed by state law, some federal laws will affect your divorce process in California.
Jurisdiction for a Military Divorce
Before a court can grant a divorce to military members or spouses, it must have jurisdiction or the authority to hear the case. For civilians, jurisdiction is generally determined by where the person lives. To file for divorce in California, one of the spouses must be a state resident for at least six months and have lived in the filing county for at least three months.
Grounds for a Military Divorce
Grounds for a military divorce in California are the same as a civilian divorce, and most are filed under no-fault laws and claim irreconcilable differences.
Serving Divorce Papers
Finding your military spouse and serving divorce papers after filing for divorce can be difficult. Although the military may assist you, they are not required to serve the divorce papers. This process is made easier if your spouse agrees to the divorce and accepts the service. However, if your spouse intends to contest the divorce, you will need the assistance of a divorce attorney to serve the papers.
In a civilian divorce, if you serve papers and your spouse does not respond, you can usually file for divorce by default judgment. This is not the case for active-duty military personnel, who are protected by the Servicemembers Civil Relief Act (SCRA), as it includes some protections from a default judgment in a civil action. Your attorney can advise you if your military spouse requests a delay.
Child custody issues, like those in a civil divorce, must be resolved before a judge will issue a divorce decree. When deciding custody and visitation issues, a California court will not discriminate against a military parent on active duty.
However, the SCRA allows a military parent to postpone custody proceedings during deployment. Another custody-related detail that military families should be aware of is the requirement to create a family care plan, which must be updated annually and cannot conflict with any court orders, such as a child custody order.
Child Support Payments
The state’s guidelines are used to calculate child support payments. The Court considers factors such as household income, the number of children, and the time the children spend with each parent. A military member’s child support payments cannot exceed 60% of their disposable earnings.
In situations where one spouse is financially dependent on the other, California courts have the authority to issue spousal support orders. An order for spousal support may not be for more than 60% of the servicemember’s pay and benefits.
In both child support and spousal support, the military requires servicemembers to meet their obligations described in the divorce decree or court order. When servicemembers do not meet those obligations, they may face military discipline. Each military branch requires servicemembers to pay their debts and support their dependents. Servicemembers who fail to meet their duties may face a court-martial.
Property Division and the 10-Year Rule
California is a community property state and California law governs the division of community property during a military divorce. This law includes determining if a spouse can be awarded part of their spouse’s military pension. However, military pension benefits fall under the Uniformed Services Former Spouses’ Protection Act (USFSPA). The USFSPA is a federal law that directs how the military pension will be calculated and divided.
The spouse of a service member will not receive direct payment of any military pension benefits from the military unless they have been married for at least 10 years that overlap with military service. If the former spouse is awarded a portion of their ex-spouse’s military pension and married for less than 10 years, they must rely on their ex-spouse for direct payment.
What is the 20/20/20 Rule?
To have access to the same benefits as your military ex-spouse, you must meet the following criteria (also referred to as the 20/20/20 Rule):
- You must have been married for at least 20 years
- Your ex-spouse must have served in the military for at least 20 years
- Your 20 years of marriage must overlap with 20 years of your ex-spouse’s military service
If you meet all of these qualifications, you get access to the same benefits as your military ex-spouse for the rest of your life—as long as you don’t remarry. This means that you receive TRICARE (health care program for uniformed service members, retirees, and their families worldwide), commissary and exchange privileges, and a portion of your ex-spouse’s retirement pay.
You must sign up for TRICARE under your name and social security number, as you will not remain on your ex-spouse’s policy. If the 20/20/20 Rule covers you, your portion of your military ex-spouse’s pension is paid directly to you by the Defense Finance and Accounting Service.
Get Help With Your Military Divorce: Contact the Compassionate San Jose Divorce Attorneys from Seabrook Law Offices
If you are the spouse of a service member and are considering a military divorce, it is essential to seek the advice of an experienced divorce attorney who understands the unique issues that arise in these cases. If you’re searching online for San Jose “divorce lawyers near me,” look no further. The compassionate attorneys at Seabrook Law Offices have extensive experience handling military divorces in California. We are here to help protect your rights and the rights of your children throughout all phases of your military divorce process.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.