When divorce is filed and one or both of the spouses is in the US military, it takes special legal skills to know how to handle the process. A military divorce is, in some ways, the same as any other divorce under California law. But in other ways, it differs significantly.
At San Diego Divorce Attorney, we are intimately familiar with the details of California divorce statutes and we are fully familiar with the points where a military divorce differs from an "ordinary" divorce as well.
Contact us today by calling 858-529-5150, and we will give you a free, no-obligation consultation and can get started on your case.
Serving a Military Divorce
As with other California divorces, military divorces do not need any special grounds or fault to be filed - so long as one spouse says he/she has "irreconcilable differences that cannot be resolved" with the other spouse.
The basic procedure does not change just because one or both spouses involved are US Armed Forces members.
To file a divorce under California law, one spouse at least must have California as his/her state of legal residence, and you must file in the county of California in which you and/or your spouse live.
You must have been a resident of California for at least 6 months and of the county where you file for at least 3 months, and the petition for divorce (for "dissolution of marriage" officially) is to be filed in the local Superior Court in your county.
There is not requirement that a spouse being filed against for divorce be in-state at the time you file, but he/she does have to be notified, wherever he/she may be stationed.
The notification (serving) of the divorce filing to the other spouse may be complicated based on where a US service member is stationed at the time.
If Your Spouse Is in the US and Off Base
If stationed in California or in another US state or DC, AND if the spouse to be served lives off-base, there is not difference from the civilian divorce process here. You can have the papers served in person or through the mail and get a "receipt" for the record and for evidence, if necessary, later on.
If Your Spouse Is in the US and On Base
But if your spouse lives in-country but ON-BASE, you have to use a sheriff or a "process server" to serve the papers in-person. This may require special coordination with your spouse's superior officer on-base, and so, you or your lawyer may need to call the base and arrange things "properly" through all the right channels.
If Your Spouse Is Stationed Overseas
Finally, if your spouse lives overseas, you will likely have to serve the divorce papers through certified mail. You would have to send it to his/her Army PO Box or Fleet PO Box. And realize that some overseas bases, for various reasons, can't easily process certified mail requests or even receive this kind of mail - so the base commander or other appropriate personnel has to contacted fist to ensure the mail will get through and the receipt proof be returned.
What Is Included in the Papers Served?
Exactly which papers to serve depends on which county you are filing in. Obtain the papers at your local Superior Court, or we can get them for you, if necessary. Normally, the served papers include a petition that describes why you are asking for a divorce and what kind of "relief" you are asking for. "Relief" can include child custody/child support, alimony, and your part of any "community (marital) property" to be divided.
A summons will also be included and will specify the deadline for your spouse to respond and/or challenged the divorce. Basically, the same papers filed with the court are also served to your spouse.
Serving the Papers In-person VS by Mail
Sometimes, a spouse will actually serve his/her partner the divorce papers him or her self, but that's not too common. Normally, a process server arranged for by your lawyer will handle in-person delivery. And this method is best to ensure speed and that you get the other spouse's signature.
But, for certain overseas bases, mail may be the only way to serve the papers. And for all overseas bases, in fact, and even out of state bases, service by mail is often resorted to.
Complexities of Military Divorces
First of all, understand that just because someone acknowledges they received the divorce papers served to him/her, that does not equal an agreement to the divorce or to the terms asked for. It only indicates a willingness to cooperate with the legal process and not try to obstruct it by sheer delay an inaction.
A military member can contest a divorce just like a civilian can. And, in fact, US law makes it far easier for US Armed Forces members to legally delay divorce proceedings filed against them. And once anything at all is contested, the delay becomes yet longer and easier to accomplish.
Specifically, the Service Members Civil Relief Act allows a 90-day delay so that those stationed on military duty (especially overseas) can take part in the process and adequately defend him or her self. The military spouse merely needs to submit a letter to a judge requesting this 90 extra days, and it will almost certainly be granted - and he/she can, in fact request additional delays later on if he/she can give a reasonable basis for requesting them.
What About Summary Dissolution?
Often, couples who mutually consent to a divorce can expedite the process by filing jointly for it, seeking "summary dissolution." This eliminates the months-long waiting period before the divorce can be finalized and immediately dissolves the marriage.
But there is no way to get a summary dissolution without the other spouse's consent. And this path eliminates any alimony. It also required that no minor children be involved who would need child support, that the marriage is five or fewer years old, and that there are not major assets, savings, or debts to divide.
A military summary dissolution divorce requires mailing paperwork back and forth if your spouse is stationed overseas (or perhaps, even on-base out of state.) You both have to sign it, and a self-addressed, stamped envelope for each spouse must be included when you submit the package to the court.
(A word of advice: never try to forge a spouse's signature to get a summary dissolution. You will almost certainly be caught, and the negative repercussions can be very severe!)
Jurisdiction Complexities with Military Divorces
The simple fact is that no court can rule on anything (and have it hold) without proper jurisdiction over the matter ruled on. Divorce (and military divorce) is no exception; but it can more difficult to determine which court has jurisdiction - and multiple courts may!
Take an example. Let's say that a US service member lives in Hawaii, but is not a true legal resident there but is a resident of California. You can't necessarily file for divorce where your spouse is stationed - it depends.
And continuing our scenario, maybe you and your spouse weren't married in California or Hawaii, but in Florida. And maybe you yourself have been living in Texas for the last 6 months or more. You can see how this gets complex. But although there is exception, you can typically file a military divorce in any of these three places: where the service member is stationed, where he/she has official residence, or where his/her spouse holds residency.
Finally, realize that there are no divorce proceedings handled by military courts. So everything has to be done in civilian courts - because divorce is not considered a military matter but a civilian one.
If you need any help determining exactly which is the proper jurisdiction to handle your divorce, we can sort that out for you.
Child Custody and Support
Next, realize that it's not unusual for the court with jurisdiction over the divorce to lack jurisdiction over child custody, visitation, and support issues.
Most states adhere to the Uniform Child Custody Jurisdiction & Enforcement Act. This means that if the child has lived in a particular state for 6 months or more, that state will have jurisdiction. But if less than 6 months, more complex rules come into play.
We at San Diego Divorce Attorney can help you figure out whether child support issues and divorce issues will be handled by the same jurisdiction or not. And if not, we can help you coordinate the actions of the two jurisdictions where they impinge upon each other.
Military Benefits and Military Divorces
All US service members and their spouses have access to a number of important benefits, including healthcare, pensions, and more. These benefits won't normally immediately end after a military divorce.
Instead, a spouse of a US Armed Forces member can still be counted as a dependent and continue to receive at least some military benefits for a number of years. If this is allowed, and if so for how long, varies based on a number of factors, such as how long the marriage lasted and how long the one spouse was a military member during the marriage.
One of the basic rules, more or less adhered to, in determining matters related to military benefits and divorce is the "20 / 20 / 20 rule."
If the marriage lasted 20 years or longer, if one spouse was in the military for 20 or more years, and if both of these things were true at the same time for 20 or more years, benefits will accrue to the former spouse of a military member.
If, however, only 15 years of "overlap" of the marriage and the one spouse's military service occurred, then the former spouse gets only a single year of military medical benefits - and nothing more.
Military medical benefits include use of TRICARE and of military healthcare facilities - for 20/20/20 spouses. 20/20/15 spouses can buy a conversion healthcare policy to get a discount for care at non-military facilities. Even if you don't qualify for either of these, however, almost any former military spouse can get at least some benefit by enrolling in the COBRA healthcare program.
Military Pensions
It is possible that both a civilian and military pension might be involved in a military divorce, as part of the issues involved in property division. The civilian pension would be divided as in any other California divorce. But the military pension has some special rules attached to it in this regard.
States have jurisdiction to grant a part of one spouse's pension to the other spouse in a divorce. The military does not set a specific limit as in the 20/20/20 rule, but there are some stipulations still.
For example, if the marriage lasted 10 years or more and overlapped with the military spouse's military service for 10 or more years, then the military will see to it that the former spouse is paid his/her due portion of the pension payments - that is, it will be received by direct payment.
But if the "10/10" rule does not apply, then military spouse will simply receive the pension money and have to send it to his/her former spouse. And of course, none of this happens until after the military spouse retires and actually starts getting paid his/her pension.
If your spouse fails to pay you the pension money, you would have legal recourse. And if you are the spouse receiving the money from your former spouse's pension, you must report that income and pay taxes on it.
In sum, you can see that there are numerous additional complications in military divorces, concerning benefits, jurisdiction, serving of the divorce notice, and more. That's why it's wise to use an experienced family law attorney to handle these types of cases.
Contact Us Today for Assistance
At San Diego Divorce Attorney, we have a long track record of ensuring our clients going through a divorce obtain a fair final settlement in every way, from child support/custody/visitation issues to property division to alimony and more.
Call us today at 858-529-5150 for a free legal consultation on the details of your case, and we will be happy to assist you!
