What You Need to Know About Divorce in the Military
There are several distinctions between a regular divorce and divorce from a military spouse. Here is everything you need to know about a military divorce in California.
In a military divorce, there are varying guidelines on spousal rights, the divorce process (including proving residency by looking at the military member’s duration of being stationed), and the benefits that may come from having been married to a military member.
What are spouses’ rights in a California military divorce?
1. Child custody rights regarding military divorce
While determining child custody and visitation, California courts will not discriminate against a parent that is serving on active duty. The spouse of a soldier should be aware that, in most cases, the soldier will not be as present in their child’s life while on active duty. Moreover, a custody order or visitation schedule cannot be changed solely due to the fact that a service member may be deployed overseas or out of state at any point in time. In fact, court hearings cannot take place if a non-military spouse files for divorce and the other spouse is still on active duty. According to the Servicemembers Civil Relief Act (SCRA), divorce proceedings can only begin 90 days after the completion of service.
Military families with children have the right to an uncontested divorce or a divorce where both spouses agree on all divorce-related issues, including child custody. Each spouse has the right to decide on custody and visitation issues without court assistance or assignment.
Related; How to Get an Uncontested Divorce in California
Child support calculations are made according to California guidelines. This means that child support is calculated using information from both parties’ income, the number of children, and how much time the child or children spend with each spouse. The law states that the quantity of child support paid cannot surpass 60% of a military member’s allowances.
2. Property
California is a community property state, meaning that all property obtained during the marriage is divided equally upon divorce. That being said, property obtained prior to the marriage is considered separate property and can be kept individually. Military divorces implement these same laws, yet there are specific laws that deal with military retirement benefits. Individuals who are a part of the U.S. Armed Forces receive retirement benefits that typically account for a majority of the family’s marital property. Regardless of whether a former spouse is part of the army, navy, or air force, most benefits obtained while married are considered part of the distributed assets. Further, the retirement pay can only be divided in half if the marriage lasted for more than ten years.
Related: Dividing Military Pension in a California Divorce
What is the process for divorcing a military member in California?
1. Meet residency requirements
In order to file for divorce in the State of California, at least one spouse must be a California resident for a minimum of six months and must have resided in the filing county for a minimum of 3 months. This law qualifies spouses to divorce military members who have been stationed in California for at least 6 months as well.
2. File necessary forms
The County Clerk’s office provides the necessary documents and forms to start the divorce process. Once these papers are filled out as needed, they should be filed with a local superior court. There is a fee included with doing so that ranges depending on the county.
3. Inform the other party
The spouse filing for divorce must notify the other party of the marriage dissolution case. This step involves delivering copies of the Petition and Summons to the spouse. There are certain rules that apply to serving documents to a military spouse on active duty. Firstly, the documents must be served to the military spouse in person. Further, the spouse filing for divorce cannot serve the documents. Personal service rules mandate that the divorce summons must be personally served by someone who is not a party to the divorce case. The individual serving the divorce summons must be over the age of 18. This step can be simplified if the receiving spouse agrees to sign a waiver and accept service, as this would allow for the divorce papers to be mailed to him or her.
4. The individual serving the forms must complete documentation
If an outside party was used to serve the divorce summons, they must complete a proof of service form. This form should then be submitted to the court. If the receiving spouse agreed to waive personal service and accepted the divorce papers through the mail, they must sign a Notice and Acknowledgement of Receipt.
5. File a response
The spouse that received the divorce summons is given an opportunity to file a response with the court. This response holds similar information as the petition. It must be served on the spouse that filed for divorce following it being filed with the court.
What benefits can come from a military divorce in California?
What is the Uniformed Services Former Spouse Protection Act?
The Uniformed Services Former Spouse Protection Act (USFSPA) is a law that serves to protect ex-military spouses’ rights and provide them with benefits post-divorce. Benefits provided include retirement benefits, usage of military exchanges as well as commissaries, free medical care, and the right to potentially obtain the survivor’s benefit plan. In California, if the couple was married for a minimum of ten years with a ten-year overlap with active service, the military member’s spouse is automatically entitled to a fragment of the retirement pay following the divorce.
Types of Benefit Plans
There are two types of benefit plans. The former spouse receives one of the two benefit plans depending on the number of years the couple lived together while the spouse was on active duty. The first benefit plan is known as the 20/20/20 rule and is predicated on 20 years of marriage, 20 years of service, and 20 years of overlap. The second rule is the 20/20/15 rule, which is predicated on 20 years of marriage, 20 years of service, and a 15-year overlap.
In the case of the 20/20/20 rule, the military spouse is entitled to a lifetime of medical privileges, commissary, and exchange benefits. However, these benefits will be terminated if the dependent spouse remarries or enrolls in an employer-provided insurance plan. In the case of the 20/20/15 rule, the benefit plan includes one year of health coverage, as well as access to medical institutions including pharmacies and hospitals.
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If you or a loved one have any more questions about military divorces in California, contact us. Get your free consultation with one of our California Divorce Attorneys today!