Military Divorce Options in California
When an active duty military service person divorces in California, the procedures are basically the same as a civilian divorce. However, military service may present some complications to the divorce proceedings resulting in a postponed divorce. Read on to learn more about military divorce options in California.
Where to File for Divorce in California
With a civilian couple, the question of where to file for divorce is simple. You file where you live. To file in California, at least one spouse must have lived in California for the past six months and in the county of the filing for the past three months. However, a military couple may be eligible to file in more than one state. If the couple can file in more than one state, the filing spouse should research the differences between state laws because some state laws may be more favorable than others. For example, some states will divide military retirement benefits and some will not. Keep in mind that if you file in a state that is not the one you currently live in, you will need to hire an attorney from that state, and you may need to travel to the state several times before you can finalize the divorce.
Serving a Military Spouse
Once a divorce petition is filed, the filing spouse must serve the divorce papers on the non-filing spouse within 30 days. If the non-filing spouse is stationed on base in the U.S., you may need to get assistance from a base officer or the military police. If the non-filing spouse is deployed overseas, service can be problematic. You can serve a deployed spouse via certified mail with return receipt, but not all military facilities are set up for this. The military would prefer that a spouse waits for their spouse to return from deployment before filing for divorce. Being served with divorce papers while deployed could distract a service-person from their mission.
Common Military Divorce Postponements
Under the Service Member’s Civil Relief Act (SCRA), active duty military members can postpone civil actions, including divorce. To request a postponement, a military member will need to write a letter stating your military service is keeping you from appearing in court. The letter must include a date when you can appear in court. You will also need a letter from your commanding officer stating that military service is preventing you from appearing in court, and leave is not permitted.
If a default judgment is entered against you while you were on active duty or within 30 days of leaving active duty, you can move to have the judgment set aside and the case reopened. To do this, you cannot have filed a response or made an appearance in court. You must be able to show the court that your military service prevented you from defending the case.
Military Divorce & Retirement Benefits
The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows for military retirement benefits to be divided during a divorce proceeding if state law allows it. In California, military retirement benefits are considered community property, and will be divided. However, federal law mandates that the marriage and military service must overlap by at least 10 years for the former spouse to be paid directly. If the marriage and military service overlap is less than 10 years, the retired military member must pay their ex directly. If you believe your ex will be unreliable with making these payments, you may wish to take a lump sum buyout rather than receive monthly payments.
Basic Allowance for Housing/ Basic Allowance for Sustenance
Military service members get a basic allowance for housing (BAH) and a basic allowance for sustenance (BAS) on top of their military salary. The BAH and BAS is based on the cost of living where they are stationed. In California, this will be treated as income when determining child support and spousal support.
In California, if you are in the military, and you get deployed overseas, your child custody rights are protected. Your ex may not make permanent modifications to the child custody order while you are overseas. He/she can file for a temporary change in the order, but this will expire once you return. If you had full custody before you went overseas, you will likely have full custody when you return.
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