Is Divorce Handled Differently If a Spouse is in the Military?
There are special considerations in play when a spouse is divorcing a spouse in the military. This article will briefly discuss some important topics you need to think about if you are considering a military divorce. This is NOT an exhaustive list – it merely scratches the surface. For more information and to discuss the specifics of your own situation, contact the esteemed divorce attorneys at Cardwell Steigerwald Young, LLP.
Where to File – Jurisdiction Issues
Military members often move around, which can raise questions about where to file for divorce. To file for divorce in California, either spouse must have been a legal resident of the state for at least six months and a resident of the county for at least three months. If the military spouse is stationed in California, that may be enough to meet the residency requirement, even if they do not stay permanently.
Serving Deployed Spouse
If the military spouse is deployed or stationed overseas, serving them with divorce papers can be more complicated. The Servicemembers Civil Relief Act (SCRA) provides protections for active-duty military members, including: the ability to delay court proceedings while on activity duty, and protection from default judgment if they are unable to appear in court. A spouse cannot rush divorce proceedings while the military spouse is deployed. The military spouse has a right to delay until they are available.
Property Division – What About Military Benefits?
California is a community property state which means it follows community property law. Community property are assets and debts acquired during marriage, which are typically equally divided between the spouses. Military divorces often include special assets, such as: military retirement pay and healthcare benefits.
Under the Uniformed Services Former Spouses Protection Act (USFSPA) military retirement pay is treated as marital property subject to division in divorce. California courts can divide military retirement benefits. If you were married for at least 10 years and the service member was active during that time, the Defense Finance and Accounting Service can pay the former spouse directly.
Spouses may be eligible for continued TRICARE health coverage, depending on the length of the marriage and military service overlap.
Support for Spouses and Children
The Department of Defense requires service members to comply with all custody, support, and visitation orders that are ordered by the court. Just like civilians, military members are required by law to provide essential support to their family. Additionally, each branch of the miliary may also have its own rules about supporting dependents, even before a court orders support.
Unlike with a civilian, the military may impose sanctions if the servicemember does NOT comply with their duties. The military can even go as far as to impose sanctions against non-complying military members and punishments as drastic as removal from military service, if the servicemember does not comply with a court order to pay support.
The state will typically be the power that determines the rate of any spousal or child support to be paid. However, when military spouses are involved, the military aspect may complicate certain issues, such as how to enforce support orders after a service member leaves on a deployment.
Support is calculated the same way as in civilian divorces, but the service member’s base pay, housing allowance, and other benefits can be considered income.
Child Custody
Military life is often very transient. When military members receive new orders, they have to move. This uncertainty can be difficult with child custody as a parent may have to become absent from a child’s life unexpectedly.
California courts have emphasized the belief that it is generally in the best interests of the children for parents to equally share time with them (absent compelling reasons not to do so). This means that military divorces will often call for unique and creative child custody plans that still allow the parent and child to have the time and space to build a meaningful relationship, even if one parent is physically away on a deployment. Once the service member returns, their absence will not be used against them in custody proceedings.
Contact Cardwell Steigerwald Young, LLP
The esteemed San Francisco divorce attorneys at Cardwell Steigerwald Young, LLP have helped countless clients through every aspect of their divorce case. Contact our team today to receive experienced guidance through any complication you may be facing in your own case.
