Military Divorce Lawyers in San Diego
It is estimated that the divorce rate among military families is considerably higher than among civilians. If you are a military member or a military spouse considering getting a divorce in California, it is crucial to understand how military divorces work and the critical role an attorney can play in helping you get through this process as a service member or the spouse of a service member.
What Are The Steps To A Military Divorce In California?
In California, the steps to initiating a military divorce are similar to a civilian divorce. First, you must check residency requirements, which means either you or your spouse must have lived or been stationed in California for at least six months and at least three months in the county where you plan to file for divorce.
After verifying that you meet the residency requirements, you will need to gather all relevant documents and fill out the necessary forms. Once they are ready, you will need to file them with your local superior court and pay any applicable fees.
Next, you will need to have the Petition and Summons served (delivered) to your spouse. Once your spouse receives it, they will have 30 days to send a response stating whether they agree with the terms of the divorce or not. There are exceptions to the 30-day rule for those who may be deployed or on active duty.
If you and your spouse agree on all aspects of the divorce and can work out a plan for child custody and support, property division, and other issues, you may get an uncontested divorce and submit your plans to a judge for approval. If you cannot agree, your divorce will be contested, and the judge will make those decisions on your behalf.
Are There Differences Between Civilian And Military Divorce?
Civilian and military divorces are very similar, but there are a few key differences that may affect your divorce process, property division, and child custody issues. First, there are federal laws that regulate divorce for military members, such as the SCRA (Servicemembers Civil Relief Act) and the Uniformed Services Former Spouses’ Protection Act (USFSPA). For example, the SCRA protects military members on active duty from default judgments.
This means that the 30-day deadline for responding to a Petition and Summons does not apply to military personnel on active duty. Any divorce proceedings must be postponed until the end of the active duty period and may not commence for another 90 days after the servicemember has returned home.
Military divorces in California are subject to the same property division rules as other divorces, meaning California considers any assets accrued during the marriage to be community property. This means that a military servicemember’s retirement benefits accumulated during the marriage may also be counted as community property.
In some cases, the military spouse may receive up to half of their former spouse’s retirement benefits as long as the marriage lasted for at least ten years. It is a good idea to consult an attorney to understand exactly what counts as marital property and how a military divorce may affect your military retirement benefits.
Are There Any Laws Protecting Military Spouses In Case Of A Divorce?
The Uniformed Services Former Spouses’ Protection Act (USFSPA) is a federal law that makes former military spouses eligible to receive portions of a military member’s retirement benefits along with medical care and other benefits such as access to military exchanges and commissary, in some cases.
The military member’s disposable retirement pay can be divided between the military member and the former spouse. In addition, if a military member was dishonorably discharged due to abusive behavior against their spouse or dependents, the spouse who was a victim of the abuse may still be eligible to receive a portion of the military member’s retirement benefits, even after the member has lost the right to receive it.
How Is Child Custody Determined in a Military Divorce?
Child custody is one of the most frequently contested aspects of any divorce. In cases where one or both parents are members of the armed forces, their status should not affect child custody decisions. The court will still give preference to what is in the best interests of the child, which is usually allowing parents to have joint custody and equal involvement in the child’s life – unless doing so may prove to be a threat to the child’s well-being.
However, parents who are active service members may need to develop a military family care plan. This plan is not a replacement for traditional child custody orders, but it complements custody orders and addresses who should be the caretaker of a minor child in the event that one or both parents should be deployed. Each branch of the military may have its own requirements regarding the situations in which a military family care plan needs to be completed and filed.
In general, a care plan is required when a servicemember is a single parent to a child under 19 or has joint custody of the child but is not married to the other parent. In addition, a plan is needed when both parents are service members and have a child under 19, or the service member is the sole caretaker of a child under 19 or a dependent adult, such as a disabled family member.
How Does the SCRA Affect Child Custody for Military Service Members?
The SCRA, or Servicemembers Civil Relief Act, is a federal law that is meant to protect the rights of military members who are actively deployed while their child custody case is pending. In a child custody case, the parties are usually subject to certain deadlines to provide a response or appear in court. The SCRA allows actively deployed service members to receive special treatment in court and protects them from being negatively impacted in the event they need to be absent while their child support case is pending.
Under the SCRA, a parent who is actively deployed may apply for special arrangements that may allow them to delay custody proceedings until they can appear in court. Additionally, the Act may protect service members from default judgments, meaning a judge cannot issue any custody orders while the service member is absent due to being deployed. The Act also establishes that a judge should not consider a parent’s active deployment status or the possibility of deployment in the future as a sole reason to grant a custody modification request.
There may be other specific laws that can impact your child custody case and your divorce if you are a member of the U.S. Armed Forces. That is why speaking to a military divorce attorney is extremely important. An attorney can help you understand your options and explain the laws that may affect your case, allowing you to make informed decisions at every step of the process.
Call Our San Diego Military Divorce Lawyers Today!
Any type of divorce can be complicated and emotionally draining, but there may be additional obstacles and things to consider when divorcing a military member. At Khosroabadi & Hill, our family attorneys are experts in military divorce laws and can help you understand your rights in a military divorce and help you navigate the divorce process with clarity and confidence. Reach out to our San Diego office to see how we can help you.