Divorce may be a lengthy and challenging process, especially when one or both spouses are in the military service. Typically, a military divorce in California or other states slightly differs from civilian marriage dissolution, involving unique regulations and often extended time frames. In general, spouses have to follow not only common family divorce guidelines but also federal laws pertinent to a divorce in the military.
If you are divorcing someone in the military or being a respondent in a divorce case, you probably want to understand what awaits you in the process. By reading this article, you can get acquainted with laws on military divorce in California, possible ways to protect your rights, and the average duration of marriage dissolution when either party is a service member.
It is only a general overview of how to get a military divorce when spouses are on amicable terms about splitting. Of course, any conflicts related to property and debt division, child custody and support, or any other crucial points may complicate and prolong the process. If that happens, spouses may want to address certified lawyers.
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What Are the Grounds for a Military Divorce in California?
The grounds for a military divorce in California are the same as grounds for a civilian marriage dissolution – irreconcilable differences or legal incapacity. When talking about legal incapacity, we imply a person’s permanent inability to make decisions. Keep in mind that a filing spouse isn’t obliged to provide some specific evidence of irreconcilable differences. But, when indicating legal incapacity as the ground for divorce, it is necessary to add expert medical or psychiatric testimony in the package of papers.
Another thing to remember is that California is a no-fault divorce state. Therefore, even if adultery or desertion took place, they wouldn’t be regarded by the court as legal justification for dissolving marriage. However, the judge may consider them when deciding on the child or spousal support.
The Specifics of a Military Divorce
All divorce cases when either spouse is a service member are regulated by military divorce laws in California. First, there is the Servicemembers Civil Relief Act (SCRA) aimed at protecting military personnel while they are serving. According to the law, any legal processes where US military representatives, including reservists, are on active duty may be halted. It is done so that service members can fully concentrate on their tasks.
In general, the SCRA serves as a legal protection from:
- Civil judicial proceedings, including divorces
- Evictions
- Interest rate cap
- Termination of residential leases
- Default judgments
- Life and health insurance payments
- Vehicle lease termination
- Taxation
- Credit card interest rates.
As for army divorce regulations concerning finances, the Uniformed Services Former Spouses’ Protection Act (USFSPA) is the core law to stick to. It was enacted in 1982 to cater to the needs of ex-spouses of military members. Based on the law, the court may define certain financial protection for a former spouse, consider military disposable retired pay as marital property, and divide it accordingly. More details on this act will be provided in the section about spousal support.
If there is any conflict between the state laws and federal military laws, the latter commonly takes precedence.
Average Duration of a Military Divorce in California
How long does a military divorce take? Usually, military divorces are lengthier than civilian marriage dissolution and may be finalized within 9-11 months in the best-case scenario. Such a divorce duration is possible if both parties cooperate and move from one stage to the other without unexpected delays. However, the procedure may take more time due to deployment, training, or duty assignments of a military person. Besides, a petitioner may have to wait to find a defendant and serve them with copies of divorce documents, as their locations are usually concealed. Furthermore, there is a mandatory 6-month waiting period that impacts the length of the proceedings.
Another important factor is that according to the SCRA, active-duty military members can request a stay (postponement) of a divorce after they are notified about the initiated case. The typical extension period is 90 days. They usually do so to focus on their military duties without the added burden of dealing with legal matters. After a military person completes their active-duty service, the court can postpone the divorce a bit more for a service member to readjust to civilian life and deal with a divorce when ready. In this case, a defendant needs to prepare and file a written request for rescheduling.
As a rule, court hearings never start until active duty ends. Besides, the judge can’t grant a default divorce if a defendant fails to prepare a response within the allocated time because of the deployment.
Residency Requirements
No matter whether you apply for a civilian marriage dissolution or a military one, you must comply with California divorce residency requirements. In general, one spouse must:
- Be a state resident for at least 6 months
- Live in the county where the case is filed for no less than 3 past months.
Since military personnel change their residency quite often, it is easier for a non-military spouse to meet the residency requirement for divorce in California. However, a person on active service can also initiate a divorce even if they haven’t been living in the state for the required period. In accordance with the Servicemember Civil Relief Act (SCRA), a military member can file for divorce in California if they are stationed there or if any county within the state is their legal residency.
So, can military members file for divorce in any state? In fact, they can. The process will be easier if they meet the residency requirements of that particular state. If they don’t, they can take advantage of specific exceptions for military personnel. According to such exceptions, they may be allowed to file for divorce in the state where they are stationed, claim legal residency, or where the other non-military spouse resides.
There are many nuances of residency requirements to consider in a military divorce, so seeking legal assistance from the Judge Advocate General (JAG) Corps may be very helpful. It provides a wide range of legal services to military members and their families. You can address certified lawyers to get general legal advice on military divorce, recommendations on what to do with your particular legal issues, or even full-scope representation in court.
Forms Needed to Start a Military Divorce
The important stage of a military divorce process is the preparation and filing of divorce forms. The major forms are identical for civilian divorce proceedings and those when one spouse is a service member. If you file for divorce, you need to fill out:
By completing and filing this form, a petitioner officially starts a divorce process. It includes personal information about the spouses and children, if any, the details about the marriage, the grounds for divorce, and the desired relief.
You can get this form from the local superior court or California Court’s website. Once you complete the paper, file it with the local superior court. There is usually a fixed filing fee a petitioner has to pay. Currently, the sum is approximately $435. If you lack money for this payment, complete the Request for Waiver of Court Fees (FW-001) and submit proof of your financial hardships.
This official court notice must be delivered to a defendant, notifying them about the initiated divorce proceedings. The document also contains information about the methods and timeframes for preparing and submitting the response and the possible consequences of non-response. Typically, a defendant has 30 days to complete and file an answer; otherwise, a default divorce may be granted. However, the response timeframe is extended for military personnel.
Usually, Summons and a copy of the Petition for Dissolution of Marriage must be served to a defendant personally. However, a filing spouse can’t do that on their own. It is necessary to hire a sheriff, a process server, or a third party over 18 to hand papers to a responding party. The person serving the documents has to fill out a Proof of Service of Summons form. It is further filed with the court.
When you divorce military spouse, and they are on active duty, serving papers may be challenging as their whereabouts are typically unknown. In such cases, a spouse starting a divorce may have to address military authorities, such as a Judge Advocate General (JAG) officer, to notify a spouse about the process. But usually, the document delivery will take place after the deployed duty is over.
After giving copies of divorce documents to a defendant, a server must complete this form. It is further filed with the court to inform the judge that the responding party knows about the case and the related obligations. The form usually includes information about the date and time of papers serving, the means of service, and the personal data of a server and their relationship to the case.
These are the main documents required to begin a military divorce in California. However, in the course of a divorce, spouses may also have to prepare additional forms:
- Declaration of Disclosure (FL-140)
- Income and Expense Declaration (FL-150)
- Schedule of Assets and Debts (FL-142)
- Property Declaration (FL-160)
- Declaration under Uniform Child Custody Jurisdiction and Enforcement Act (FL-105)
- Child Custody and Visitation (Parenting Time) Application Attachment (FL-311)
What Issues Must You Agree on?
There are lots of things to negotiate during a military divorce. Of course, it is highly advisable to approach the discussions peacefully to reach satisfactory decisions on all important matters. In general, the issues in a military divorce are much like those in a civilian case. However, some military regulations may affect the final resolutions.
If you are going through a military marriage dissolution, you need to come to terms with a partner on:
- Property Division
California is a community property state. Therefore, assets and debts accrued during a marital life are treated as community property and must be divided equally between divorcing spouses. This approach is applicable to military pensions and benefits as well. Assets acquired by each spouse before marriage or personal gifts are usually classified as separate possessions.
If a military spouse has a Thrift Savings Plan (TSP) or a similar savings plan, the money saved during their marriage can be shared in a divorce. The ex-spouse usually has the right to receive up to 50% of the money accumulated. The “marital share” is the time when the military member was contributing to the TSP while being married.
Debts accumulated by spouses during a marriage are typically considered community debts. So, they are also divided equally.
If spouses have a valid prenuptial or postnuptial agreement where the terms of property division are specified and agreed upon, the judge usually sticks to such regulations when declaring a verdict.
- Child Custody and Support
Similar to other states, the Californian court prioritizes the best interest of the child when rendering a decision on child custody and support. The judge considers such factors as a kid’s age, health conditions, relationships with each parent, and the adult’s ability to meet the child’s needs when determining physical and legal custody. In most situations, the court grants joint custody so that kids can spend an equal amount of time with both parents, and both ex-spouses can decide on important legal matters related to the child.
However, when one spouse is in the military, it may be challenging for the person to be around the kid on a regular basis. But it doesn’t mean the court will favor the other party when issuing a ruling on child custody. Federal laws in California are created to protect the rights of service members when it comes to a visitation plan. For instance, they may be allowed to participate in custody with the help of electronic means, e.g., Zoom calls.
As for military divorce child support, both parents are obliged to meet the kid’s financial needs. When defining the child support payment, the court usually evaluates the income of each parent, the amount of time every party spends with a kid, regular child care expenses, and each parent’s mandatory dues, such as health insurance. If a service member will be a supporting party, the court will also consider their total compensation, including non-taxable allowances.
- Spousal Support
Military spousal support may be granted by the court to ensure the supported spouse will have the same living standard as before marriage termination. Usually, when deciding on military divorce and alimony, the judge pays attention to the duration of a marriage, the financial needs of both parties, the dependent spouse’s level of education, and the health and age of each partner. How much alimony does a military wife get, on average? It is hard to name the exact sum of spousal support in military divorce, as the court calculates it based on the specifics of a divorce case.
The length of marriage greatly impacts the duration of the alimony. For example, in marriages shorter than ten years, the duration of spousal support can be half the length of the marriage. If a marriage lasts 10+ years, the court may not decide on a particular end date for spousal support. The spouse with lower earnings can receive alimony for as long as they need it or as long as the other spouse can afford to pay. Usually, if a receiving spouse dies or remarries, the alimony payments are stopped.
If a marriage lasted for at least 20 years, the service member has at least 20 years of creditable military service, and there is a 20-year overlap between the marriage and the military service, a former spouse may be eligible for certain military benefits, healthcare (TRICARE), commissary, and exchange privileges. These regulations are referred to as the 20/20/20 rule.
There is also the 20/20/15 rule. If a marriage lasted for at least 20 years, a military person has at least 20 years of creditable military service, and there is a 15- to 19-year overlap between the marriage and the military service, an ex-spouse may get transitional benefits for a limited period.
Main Differences Between Civilian & Military Divorces
While some aspects of a divorce procedure are identical for civilian and military cases, there are still important differences worth considering.
| Aspect | Civilian Divorce | Military Divorce |
| Jurisdiction and Residency Requirements | Residency requirements are typically determined by the laws of the state where the divorce is filed. One of the spouses must have lived in California for at least 6 months. | Common residency regulations may not be applicable. Military service members may consider their duty station as their legal residence, and the SCRA may impact residency requirements. |
| Division of Military Benefits | There are no specific military benefits. | Spouses can receive some military benefits, subject to division in a military divorce. |
| SCRA Protections | There aren’t any SCRA protections. | Service members can use legal SCRA protections, e.g., postpone court proceedings during deployment. |
| Child Custody and Visitation | Child custody and visitation are based on the best interests of the child. | Child custody and visitation are based on the best interests of the child. Courts usually consider the unique challenges of each military family. |
| Spousal Support | Spousal support is calculated according to state laws. | In addition to the state laws, the judge may consider military income, including allowances and special payments, when calculating spousal support. USFSPA army divorce regulations impact the division of military retirement pay. |