What to Know About Divorcing Your Military Spouse

If you are thinking about divorce and your spouse is a member of the military, unique legal issues can arise. While the process for divorcing a military spouse is generally the same as it would be if they were a civilian, there are certain differences that are important to understand. Critically, these cases may sometimes be more complex because they can involve both California and federal law.

Here’s what to know about divorcing your military spouse:

The Divorce Process is Typically the Same for Military and Civilian Divorces

Military courts do not handle or grant divorces. Rather, the legal procedure for divorcing a military spouse is typically the same as a civilian divorce. To start the process, you must file the divorce papers with the court, serve them on your spouse, and they must respond to the action.

Just as with a civilian divorce, a military divorce requires that the parties divide their property, allocate debts, distribute their assets, and resolve child support and alimony issues. Spouses must also reach an agreement regarding custody and visitation. If they are unable to resolve these issues between themselves, a judge will determine the outcome.

There Are Procedural Issues That Must Be Addressed in a Military Divorce

Although military and civilian divorces follow the same legal process, there are critical procedural and jurisdictional matters that must be addressed. Since military spouses are often stationed throughout the United States or overseas, you might encounter issues when determining where the divorce papers should be filed. Significantly, the court in which you file for divorce must have jurisdiction to hear your case. If you meet California’s residency requirements and your spouse is stationed overseas but plans to return to California, you will likely file the papers in California.

If you file for divorce while your spouse is serving on active duty, the laws can vary. Similar to a civilian divorce, the spouse who is receiving the divorce papers must be properly served a summons and complaint. But serving a spouse who is deployed can sometimes be difficult, and the law recognizes this. Under The Servicemembers Civil Relief Act (SCRA), an active-duty member of the military cannot be held in default for failing to respond to divorce papers if they are unable to do so. In the event a default divorce was obtained while the spouse was on active duty, the case may be reopened and the judgment obtained can be put aside.

Serving a Military Spouse with Divorce Papers

In cases where a military spouse resides in the United States and does not live on a military base, the requirements for service of process is the same as in a civilian divorce. However, the SCRA can impact how an active duty servicemember is served divorce papers. If they live on a military base, personal service should be effectuated by a process server or the sheriff. In such instances, you may also be able to contact the military base to ensure your spouse is available to accept the papers.

If your spouse is stationed on a military base overseas, it may be possible to serve the divorce papers through certified mail by sending them to the Army Post Office, return receipt requested. If the military base in the country in which your spouse is stationed does not support return service, you may be able to contact an active-duty officer or civilian individual who can personally serve the papers.

When service of process would violate the Hague Convention, it may be possible to mail the divorce papers to the “central authority” who will carry out service in accordance with the laws applicable to that jurisdiction.

Unique Issues Can Arise in a Military Divorce

Apart from the complexities that can arise regarding service of process, there are other considerations that must be addressed when divorcing a military spouse. While the same issues must be resolved in a civilian divorce — i.e., property distribution, child custody, and support — there can be specific nuances concerning these matters when it comes to a military divorce.

Issues that must be determined when divorcing a military spouse include the following:

• Child custody — Just as in a civilian divorce, child custody matters must be decided before a judge will issue a divorce decree. A California court will not discriminate against a parent who might be placed on active duty when deciding custody and visitation matters.
• Child support — Child support is determined in accordance with California’s state guidelines. The amount cannot be more than 60% of a service member’s allowances.
• Spousal support — California courts may issue a spousal support order in cases where one spouse was financially dependent upon the other. A spousal support order cannot exceed 60% of the servicemember’s pay and allowances.
• Property division — California is a community property state. This means any assets acquired during the course of a marriage may be divided equally upon divorce, including military retirement pay. The former spouse of a military member may be entitled to part of the spouse’s military retirement pay if the couple was married at least ten years with an overlapping ten years of active service.

It’s essential to understand that the Uniformed Services Former Spouses’ Protection Act does not permit the former spouse of a military member to receive a share of their Military Disability Retired Pay, VA Disability Compensation, or Special Combat-Related Compensation. However, a former spouse might be entitled to retain TRICARE health benefits if the 20/20/20 rule is satisfied. In other words, the duration of the marriage must have been at least 20 years, the servicemember must have served in the armed forces for at least 20 years, and the marriage and period of service must have overlapped for 20 years.

Contact an Experienced California Military Divorce Attorney

If you are considering divorce and your spouse is a servicemember, it’s important to have skilled legal counsel by your side who understands the complexities of a military divorce — and can guide you through the process. Offering compassionate counsel and experienced advocacy, The Law Offices of Rick D. Banks has been helping clients throughout Fresno and the surrounding area with their divorce and family law matters for over 20 years. To schedule a no obligation consultation, call (559)222-4891.